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PETITIONER: P.V. NARSIMHA RAO

       Vs.

RESPONDENT: STATE (CBI/SPE)

DATE OF JUDGMENT:       17/04/1998

BENCH: S.C. AGRAWAL, A.S. ANAND

ACT:

HEADNOTE:

JUDGMENT: [Withe CRL.  A. NOS.  1209/97, 1210-12/97, 1213/97, 1214/97, 1215/97, 1216/97,  1217-18/97,  1219/97,  1220/97,  1221/97, 1222/97, 186/98  (Arising out  of S.L.P. (Crl.) No.2/98) AND 187/98 (Arising out of S.L.P. (Crl.) No. 366/98)]                       J U D G M E N T S.C. AGRAWAL, J.      Whether by  virtue of Article 105 of the Constitution a Member of  Parliament can claim immunity from prosecution on a charge  of bribery  in a  criminal court,  and  whether  a Member of  Parliament is  a "public  servant" falling within the purview  of  the  Prevention  of  Corruption  Act,  1986 [hereinafter referred  to as  ‘the 1988 Act’]. These are the two questions  which have  come up  for consideration before this bench in these matters.      In the General Election for the Tenth Lok Sabha held in 1991 the  Congress (I)  part, emerged  as the single largest party and  it formed  the Government  with P.V. Narsimha Rao [hereinafter referred  to as ‘A-1] as the Prime Minister. In the Monsoon  Session of Lok Sabha July 1993 a ‘No Confidence Motion’ was  moved  against  the  Government  by  Shri  Ajay Mukhopadhyaya, a  CPI(M) M.P.  At that  time  the  effective strength of  the House  (Lok Sabha) was 528 and Congress (I) party had 251 members. It was short by 14 members for simple majority. The  Motion of  No-Confidence  was  taken  up  for discussion in  the Lok  Sabha on July 20 1993 and the debate continued till  July 28, 1993. The motion was thereafter put to vote.  The motion was defeated with 251 members voting in favour of  the motion,  while  265  voting  against  it.  On February 28, 1996, on Shri Ravindra Kumar of Rashtriya Mukti Morcha filed  a complaint  dated February  1, 1996  with the Central Bureau of Investigation [for short ‘CBI’] wherein it was alleged  that in  July 1993  a criminal  conspiracy  was hatched by  A-1, Satish  Sharma [hereinafter  referred to as ‘A-2], Ajit Singh [hereinafter referred to as ‘A-13], Bhajan Lal [hereinafter  referred to  as ‘A-14],  V.C. Shukla, R.K. Dhawan and  Lalit Suri to prove a majority of the Government on the  floor of  the House  on July  28,  1993  by  bribing Members  of   Parliament  of  different  political  parties, individuals and  groups of an amount of over Rs.3 crores and that in furtherance of the said criminal conspiracy a sum of

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Rs. 1.10  crores  was  handed  over  by  the  aforementioned persons, except  A-15, to Suraj Mandal [hereinafter referred to as  ‘A-3]. On  the basis  of the  said complain  the  CBI registered four  cases under Section 13(2) read with Section 13(1)(d)(iii) of  the 1988  Act  against  A-3,  Shibu  Soren [hereinafter   referred   to   as   ‘A-4],   Simon   Marandi [hereinafter referred  to as  ‘A-5’]  and  Shallendra  Mahto [hereinafter referred  to as  ‘A-6’], Members  of Parliament belonging to  the Jharkhand  Mukti Morcha  party [for  short ‘JMM’]. Subsequently in pursuance of the order dated May 24, 1996 passed  by the  Delhi High Court in Civil Writ Petition No. 23/96  another case  was registered  on  June  11,  1996 against A-1,  A-2, A-3,  A-4, A-5,  A-6,  A-14,  A-15.  V.C. Shukla, R.K.  Dhawan, Lalit  Suri and  others under  Section 120-B-IPC  and  Section  7,  12,  13(2)  read  with  Section 13(1)(d)(iii)  of   the  1988   Act.  After  completing  the investigation, the  CBI submitted  three charge sheets dated October 30,  1996, December  9, 1996 and January 22, 1977 in the court  of Special  Judge, New Delhi. In the first charge sheet  dated   October  30,   1996  it   was   stated   that investigation had  revealed that A-1, A-2, A-3, A-4, A-5, A- 6, Buta  Singh [hereinafter referred to as ‘A-7’], and other unknown persons entered into a criminal conspiracy to defeat the ‘No  Confidence  Motion’  by  resorting  to  giving  and accepting of  gratification as  a motive  or reward  and  in pursuance thereof  four Members  of Parliament  belonging to JMM) A-3,  A-4, A-5  and A-6) accepted illegal gratification to vote  against the  Motion and  because of their votes and some other  votes the Government led by A-1 survived. It was also stated  in the charge sheet that investigation has also revealed that  the four  Members of  Parliament belonging to JMM had  been bribed  in crores  of rupees for voting agains the ‘No  Confidence Motion’. The said charge sheet was filed against A-1,  A-2, A-3,  A-4, A-5,  A-6 and  A-7   and other unknown persons  in respect  of offences under Section 120-B IPC  and   Sections  7,   12,  13(2)   read   with   Section 13(1)(d)(iii) of  the  1988  Act  and  substantive  offences thereunder. The  second charge  sheet dated December 9, 1996 was in the nature of a supplementary charge sheet wherein it was stated  that investigation  has further revealed that V. Rajeshwar Rao  [hereinafter  referred  to  as  ‘A-8’],  N.M. Revanna [hereinafter  referred to  as ‘A-9], Ramalinga Reddy [hereinafter  referred  to  as  ‘A-12]  and  M.  Thimmegowda [hereinafter referred  to as ‘A-13] were also parties to the criminal conspiracy which is the subject matter of the first charge sheet  filed on  October 30, 1996 and in pursuance to the said  criminal conspiracy  they had  arranged funds  and bribed the  four JMM  MPs as  the motive  or award to secure their support  to defeat  the  ‘No  Confidence  Motion’  and thereby committed the offences punishable under Section 120- B  IPC   and  Section   7,  12,   13(2)  read  with  Section 13(1)(d)(iii) of  the  1988  Act  and  substantive  offences thereunder along  with the  original seven  accused. In  the third  charge  sheet  dated  January  22,  1997,  which  was described as  ‘Supplementary Charge  Sheet No.  2’,  it  was stated that  further investigation has been carried on under Section 173(8)  of Cr.  P.C. and  as a  result  identity  of remaining accused persons has been established and that they are A-14, A-15, Ram Lakhan Singh Yadav [hereinafter referred to as  ‘A-16’], Ram Sharan Yadav [hereinafter referred to as ‘A-‘7’], Roshan  Lal [hereinafter  referred to  as  ‘A-18’], Abhay Pratap  Singh [hereinafter  referred  to  as  ‘A-19’], Anadi Charan  Das [hereinafter  referred to as ‘A-20’], Haji Gulam Mohd. Khan [hereinafter referred to as ‘A-21] and late G.C. Munda  [hereinafter referred  to  as  ‘A-22’].  It  was

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stated that  even after securing the support of four JMM MPs in the manner stated in the first charge sheet dated October 30, 1996  and second charge sheet dated December 9, 1996 the Congress (I)  Government still  required the support of some more MPs  and that  with this objective the Congress (I) led by A-1  was making  efforts to win the support of some other MPs including  MPs belonging  to Janta Dal (Ajit Group) [for short ‘JD(a)].  In the  charge sheet it was also stated that A-14, A-15,  A-16, A-17,  A-18, A-19,  A-20, A-21  and A-22’ were parties to the criminal conspiracy along with A-1 to A- 13 already  named in  the earlier  two charge  sheets and in pursuance to  the said criminal conspiracy A-14 had arranged funds and  had paid  bribes to A-15 and the seven MPs of the breakaway JD(A) as a motive or award to secure their support to defeat  the ‘No  Confidence Motion  and thereby committed the offences  punishable under Section 120-B IPC and Section 7, 12, 13(2) read with Section 13(1)(d)(iii) of the 1988 Act and substantive offences thereunder.      An application  was submitted by A-6 (Shailendra Mahto) under Section  306 Cr.  P.C. for  grant of  pardon for being treated as an approver. The said application was referred to the Magistrate for recording his statement under Section 164 Cr. P.C.  and  after  considering  the  said  statement  the Special Judge,  by order  dated April  5, 1997,  allowed the application of  A-6  and  tendered  pardon  to  him  on  the condition of  his making  a full  and true disclosure of all the circumstances  within  his  knowledge  relating  to  the offences of  every other  person  concerned,  whether  as  a principal or abettor in the commission of the offences under the charge  sheets. After  hearing the arguments on charges, the Special Judge passed the order dated May 6, 1997 wherein he held  that there  is sufficient  evidence  on  record  to justify framing of charges against all the appellants. In so far as  A-1, A-2,  A-7 and  A-8’ to  A-14 are concerned, the Special Judge  held that  there is  sufficient  evidence  on record to justify framing of charges under Section 120-B IPC read with  Section 7,  12, 13(2), read with Section 13(1)(d) of the  1998 Act and also for substantive offence punishable under Section 12 of the 1988 Act against all of them. So far as A-3  to A-5  and A-15  to A-21 are concerned, the Special Judge held  that there  is sufficient  evidence on record to justify framing of charges under Section 120-B IPC read with Section 7,12,  13(2) read with Section 13(1)(d) of t he 1988 Act  and   as  well   as  charges  for  substantive  offence punishable under  Section 7  and  Section  13(2)  read  with Section 13(1)(d)  of the  1988 Act  against all of them. The Special Judge  also held  that there is prima facie evidence of commission  of offence  under Section  193 IPC by accused Nos. A-3 to A-5.      Before the  Special Judge,  an objection  was raised  n behalf of  the accused  persons that the jurisdiction of the Court to try the case was barred under Article 105(2) of the Constitution because  the trial  is in  respect  of  matters which relate  to the  privileges and immunities of the House of Parliament  (Lok Sabha)  and its  Members inasmuch as the foundation  of  the  charge  sheets  is  the  allegation  of acceptance of bribe by some Members of Parliament for voting against the  ‘No Confidence Motion’ and that the controversy to be decided in this case would be in respect of the motive and action  of Members  of Parliament pertaining to the vote given by  them in  relation to  the  ‘No Confidence Motion’. The Special  Judge rejected  the said contention on the view that in  the present  case voting  pattern  of  the  accused persons was  not under  adjudication and they were sought to be  tried   for  their   illegal  acts   committed   outside

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Parliament, i.e.,  demanding and  accepting  the  bribe  for exercising their  franchise in  a particular manner, and the accused persons  are not  being  prosecuted  for  exercising their right  of vote  but they  are being  prosecuted on the allegations that they while holding a public office demanded and accepted  illegal  gratification  for  exercising  their franchise  in  a  particular  manner  which  is  an  offence punishable under  the 1988  Act and  that Article 105 of the Constitution does  not provide any protection to the accused persons.  Another  contention  that  was  urged  before  the Special Judge  was that  a Member  of Parliament  is  not  a public servant  for the  purpose of the 1988 Act and as such giving and  taking of the alleged illegal gratification does not amount to any offence punishable under the provisions of the 1988  Act and  there cannot be any offence of conspiracy of giving and taking of bribe by a Member of Parliament. The said contention  was rejected  by the  Special Judge  on the view that  the question  whether a Member of Parliament is a public servant  is concluded  by the  decision of  the Delhi High Court  in the cases of L.K. Advani v. Central Bureau of Investigation wherein  it  has  been  held  that  Member  of Parliament is  a public  servant under  the 1988 Act. It was also urged  before the Special Judge that the case could not be proceeded  against the  accused  persons  since  previous sanction for  prosecution under  Section 19  of the 1988 Act had not been obtained. The said contention was also rejected by the Special Judge on the ground that no previous sanction of prosecution  for an  accuse under Section 19 is necessary if he has ceased to hold a public office which was allegedly misuse by  him and in the present case at the time of filing of the charge sheets and on the sate of taking of cognizance by the  Court Tenth  Lok Sabha  had come to an end and after the Election  in 1996  at the  accused persons  who were the members of the Tenth Lok Sabha had ceased to hold the office as Members  of the said Lok Sabha and therefore under law no sanction for  their prosecution  is required and furthermore accused  persons   are  sought  to  be  tried  for  criminal conspiracy under Section 120-B IPC read with Sections 7, 12, 13(2) OF  of the 1988 Act as well as the substantly offences and that according to Section 19 of the 1988 Act sanction is required only  in respect  of the  offences punishable under Section 7 and 13 and these substantive offences were alleged committed by  Members of  Parliament who  had  accepted  the illegal gratification  for voting  again the  ‘No Confidence Motion’ and  that no  sanction is  required in the case of a Member of  Parliament or  a Member  of the State Legislature though  he   is  a   public  servant  because  there  is  no sanctioning authority  qua him.  Revision Petitions filed by the appellants  against the  said order of the Special Judge have been  dismissed by  the impugned  judgment of the Delhi High Court. In the High Court the following contentions were urged by the appellants :- (i)   Even  if  the  allegations  of  the  prosecution  were      accepted, the  Court  would  have  no  jurisdiction  to      fasten any criminal liability on the accused persons as      whatever allegedly  happened was  in respect  of  votes      given by some of them in the Lok Sabha and that, in any      case, whatever  transpired, touched  the privileges  of      the House  within the meaning of clauses (2) and (3) of      Article 195 of the Constitution. (ii) Member of Lok Sabha hold no office an d as such are not      public servants  within the  meaning of Section 2(c) of      the 1988  Act and  that for  that reason  the 1988  Act      would not  apply to  the alleged  acts of  omission and      commission of the accused persons.

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(iii)Even if  it be  taken that Members of Lok Sabha do fall      within Section  2(c) of the 1988 Act and are thus taken      to be  public servants, yet the Act would not apply for      the simple reason that in the case of Lok Sabha Members      there is  no authority  competent to  remove them  from      their office  within the meaning of Section 19(1)(c) of      the 1988 Act. (iv) In  the case  of A-1, A-9, A-10, A-11 and A-13 there is      nothing to show that they had conspired or were part of      any conspiracy. (v)   Sanction was  required under  Section 197  Cr. P.C. to      prosecute A-1. (vi) No case is made out for framing the charges against the      appellants.      While  dealing  with  the  first  contention  based  on clauses (2)  and (3)  of Article 105 of the Constitution the High Court  has held  that to  offer bribe  to a  Member  of Parliament to  influence him  in his conduct as a member has been treated as a b reach of privilege in England but merely treating the commission of a criminal offence as a breach of privilege does  not amount  to ouster  jurisdiction  of  the ordinary court  to try penal offences and that to claim that in such  matters the courts would have no jurisdiction would amount to  claiming a  privilege to commit a crime. The High Court has  also pointed  out that four notices of a question of privilege  dated February  26 and  27, 1997 were given by four members of Lok Sabha, namely, Sarva Shri Jaswant Singh, Indrajit Gupta,  Arjun Singh  and Jagmeet Singh Brar against A-1 and the four members belonging to JMM (A-3  to A-6). The notices were  forwarded to the said accused for comments and after discussion on the said notices during which members of all parties expressed their views the Speaker disallowed the notice given  by Shri  Arjun Singh on March 11, 1996 and the notices of  a question  of privilege  given  by  Sarva  Shri Jaswant Singh,  Indrajit Gupta  and Jagmeet  Singh Brar were disallowed by  the Speaker  on March  12, 1996.  The  second submission that   a  Member of  Parliament is  not a  public servant under  Section 2(c)  of the 1988 Act was rejected by the High  Court on the view that that a member of Parliament holds an office and is a public servant falling under clause (viii) of Section 2(c) of the 1988 Act. The third contention that  the  1988  Act  is  not  applicable  to  a  Member  of Parliament since  there is  no authority competent to remove him from  his office  for the  purpose of  granting sanction under Section 19(1)(c) of the 1988 Act was also not accepted by the  High Court.  It  was  held  in  the  absence  of  an authority to  remove a  Member of  Parliament does  not mean that the 1988 Act would not be applicable to him. As regards the requirement  of sanction  under Section  197 Cr. P.C. as against A-1,  the High  Court held  that A-1  was a party to actual bribing  of Members  of Parliament  and that it is no job of  a Prime  Minister to  hatch or  be a party to such a criminal conspiracy and that what A-1 did cannot fall within the ambit of the words "while acting of purporting to act in the discharge  of his official duty" in Section 197 Cr. P.C. The High Court thereafter examined the material on record in relation to  each accused person and found that there was no ground for  interfering with the order passed by the Special Judge.      Felling aggrieved  by the  said judgment  of  the  High Court, the  appellants have filed these appeals. The appeals were heard  by a  bench of  three Judge.  After hearing  the arguments of  the learned  counsel, the  following order was passed by that bench on November 18, 1997 :-      "Among    other     questions,    a

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    substantial question  of law  as to      the interpretation  of Article  105      of the  Constitution  of  India  is      raised in  these  petitions.  These      petitions are,  therefore, required      to be  heard and  disposed of  by a      Constitution Bench.      Accordingly,   the    Registry   is      directed to  place these  petitions      before Hon’ble  the  Chief  Justice      for necessary orders." In pursuance  of the  said order, the matter has been placed before us. At the commencement of the hearing, we passed the following order on December 9, 1997 :-      "By order  dated November  18, 1997      these matters have been referred to      this  Court  for  the  reason  that      among    other     questions,     a      substantial question  of law  as to      the interpretation  of Article  105      of the  Constitution  of  India  is      raised in  these  petitions.  These      petitions are,  therefore, required      to be  heard and  disposed of  by a      Constitution  Bench.   The  learned      counsel for  the parties agree that      the  Constitution  Bench  may  only      deal with the questions relating to      interpretation of  Article  105  of      the    Constitution     and     the      applicability of  the Prevention of      Corruption  Act   to  a  Member  of      Parliament  and   Member  of  State      Legislative Assembly  and the other      questions can  be considered by the      Division Bench." During the pendency of the appeals in this Court the Special Judge has  framed the  charges against  the accused  persons [appellants  herein]   on  September   25,  1997.   All  the appellants have  been charged  with the  offence of criminal conspiracy punishable  under Sections  120-B IPC  read  with Section 7,  12 and 13(2) read with 13(1)(d) of the 1988 Act. A-3 to  A-5, belonging to JMM and A-15 to A-21, belonging to JD(A), have been further charged with offences under Section 7 and  Section 13(2)  read with Section 13(1)(d) of the 1988 Act. A-3  to A-5  have also  been charged  with the off once under Section  193 IPC. The other appellants, viz., A-1, A-2 and A-7 to A-14 have been charged with offence under Section 12 of  the 1988 Act for having abetted the commission of the offence punishable  under Section  7 of  the 1988 Act by the members of Parliament belonging to JMM and JD(A). Section 7,  12 and 13(a)(d) and 13(2) of the 1988 Act may be reproduced as under :-      "8.    Public     servant    taking      gratification      other      legal      remuneration  in   respect  of   an      official act.-  Whoever, being,  or      expecting to  be a  public servant,      accepts or  obtains  or  agrees  to      accept or  attempts to  obtain from      any person,  for himself or for any      other  person,   any  gratification      whatever,    other    than    legal      remuneration as  a motive or reward      for doing or forbearing to show, in

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    the  exercise   of   his   official      functions, favour  or disfavour  to      any  person  or  for  rendering  or      attempting to render any service or      disservice to  any person, with the      Central  Government  or  any  State      Government  or  Parliament  or  the      Legislature of  any State  or  with      any local authority, corporation or      Government   company referred to in      clause (c)  of Section  2, or  with      any public  servant, whether  named      or otherwise,  shall be  punishable      with imprisonment  which  shall  be      not less  than six months but which      may extend  to five years and shall      also be liable to fine.      Explanations.- (a) "Expecting to be      a public  servant." If a person not      expecting to be in office obtains a      gratification by  deceiving  others      into a  belief that  he is about to      be in office, and that he will then      service them,  he may  be guilty of      cheating, but  he is  not guilt  of      the   offence   defined   in   this      section.      (b)   "Gratification."   The   word      "gratification" is  not  restricted      to pecunniary  gratifications or to      gratifications estimable in money.      (c)  "Legal   remunerations."   The      words "legal  remuneration" are not      restricted to  remuneration which a      public servant can lawfully demand,      but include  all remuneration which      he is  permitted by  the Government      or  the   organisation,  which   he      serves, to accept.      (d) "A motive or reward for doing."      A person who receives a      gratification as a motive or reward      for doing what he does not intend      or is not in a position to do, or      has not done, comes within this      expression.      (e) Where  a public servant induces      a  person  erroneously  to  believe      that   his   influence   with   the      Government has obtained a title for      that person  and thus  induces that      person to  give the public servant,      money or any other gratification as      a  reward  for  this  service,  the      public  servant  has  committed  an      offence under this Section."      "12.  Punishment  for  abetment  of      offences defined  in Section  7  or      11.-  Whoever   abets  any  offence      punishable  under   Section  7   or      Section  11  whether  or  not  that      offence is committed in consequence      of   that    abetment,   shall   be      punishable with  imprisonment for a      term which  shall be  not less than

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    six months  but which may extend to      five years and shall also be liable      to fine."      "13.  Criminal   misconduct  by   a      public  servant.-   (1)  A   public      servant  is   said  to  commit  the      offence of criminal misconduct.-      (a) X     X        X          X      (b) X    X         X           X      (c) X    X         X           X      (d) If he,-           (i)  by   corrupt  or  illegal      means, obtains  for himself  or for      any other person any valuable thing      or pecuniary advantage; or           (ii) by  abusing his  position      as a  public servant,  obtains  for      himself or for any other person any      valuable   thing    or    pecuniary      advantage; or           (iii) while  holding office as      a public  servant, obtains  for any      person any  valuable  or  pecuniary      advantage   without    any   public      interest; or      (e) X     X      X               X      (2) Any  public servant who commits      criminal   misconduct    shall   be      punishable imprisonment  for a term      which shall  be not  less than  one      year but which  may extend to seven      years and  shall also  be liable to      fine." The charge  of criminal conspiracy as against appellants who are alleged  to have agreed to offer gratification (A-1, A-2 and A-7 to A-14) is in these terms:-      "That you P.V. Narsimha Rao between      July and  August, 1993 at Delhi and      Bangalore were  party to a criminal      conspiracy and agreed to or entered      into an  agreement  with  your  co-      accused Capt.  Satish Sharma,  Buta      Singh,  V.   Rajeshwara  Rao,  H.M.      Revanna,   Ramlinga    Reddy,    M.      Veerappa Moily, D.K. Audi Keshvalu,      M.  Thimmegow,   Bhajan  Lakl,  JMM      (Jharkhand Mukti Morcha) MPs. Suraj      Mandal,   Shibu    Sopren,    Simon      Marandi. Shilendra Mahto (Approver,      since granted  pardon  on  8.4.97),      Janta Dal  (Ajit  Group)  MPs  Ajit      Singh  ,  Ram  Lakhan  Singh,  Haji      Ghulam Mohd,  Khan  and  late  G.C.      Munda to  defeat the  no confidence      motion moved on 26.7.93 against the      then Congress (I) Government headed      by you  by illegal  means viz.,  to      offer or  cause to  offer  and  pay      gratification other  than the legal      remuneration  to   your  co-accused      persons namely J.M.M. and Janta Dal      (A) MPs  named above as a motive or      reward   for   their   helping   in      defeating the  said  no  confidence      motion  moved   by  the  opposition

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    parties and  in  pursuance  of  the      said agreement  you paid  or caused      to pay  several lacs  of rupees  to      the above  referred JMM  and  Janta      Dal  (A)   MPs  who   obtained   or      attempted to obtain the same in the      manner stated above and thereby you      have    committed     an    offence      punishable u/s 120 IPC re/w Section      7, 12, 13(2) r/w 13(1)(d) of the PC      Act 1988 and within my cognizance." The charge  of criminal conspiracy as against appellants who are alleged to have agreed to receive the gratification (A-3 to A-5 and A-15 to A-21) is in these terms :-      "Firstly,  you   between  July  and      august, 1993 at Delhi and Bangalore      were party to a criminal conspiracy      and agreed  to  or  enter  into  an      agreement with your co-accused P.V.      Narsimha Rao,  Capt. Satish Sharma,      Buta Singh, V. Rajeshwara Rao, H.M.      Revanna, Ramlinga Reddy, M. Veerapa      Moiley,  D.K.   Audi  Keshvalu,  M.      Thimmegowda,   Bhajan    Lal,   JMM      (Jharkhand Mukti  Morcha) MPs Shibu      Soren,  Simon   Marandi,  Shilendra      Mehto  (Approver,   since   granted      pardon on  8.4.97), Janta Dal (Ajit      Group) MPs.  Ajit Singh, Ram Lakhan      Singh  Yadav,   Ram  Sharan  Yadav,      Roshan  Lal,   Anadi  Charan  Dass,      Abhey  Partap  Singh,  Haji  Ghulam      Mohd. Khan  and late  G.C Munda  to      defeat  the  no  confidence  motion      moved against the then Congress (I)      Government headed  by accused  Shri      P.V. Narsimha  Rao  on  26.7.93  by      illegal means  viz.  to  obtain  or      agree to obtain gratification other      than legal  remunerations from your      above named  accused persons  other      than JMM and Janta Dal (A) MPs as a      motive or  reward for defeating the      no   confidence   motion   and   in      pursuance   thereof   above   named      accused persons  other than JMM and      Janta Dal  (A)  passed  on  several      lacs of rupees to you or your other      co-accused namely JMM and Janta Dal      (A) MPs which amounts were accepted      by  you  or  your  said  co-accused      persons  and   they  by   you  have      committed an offence punishable u/s      120B r/w  Sections 7,  12 13(2) r/w      Section 13(1)(d) of the P.C Act and      within my cognizance." The charges  under Section  13(2) read with Section 13(1)(d) of the  1988 Act  agains A-3  to A-5 and A-15 to A-21 are in these terms :-      "Secondly, that  you being a public      servant while  functioning in  your      capacity of  Member  of  Parliament      (10th   Lok   Sabha)   during   the      aforesaid   period   and   at   the      aforesaid places  in  pursuance  of

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    the aforesaid  conspiracy  demanded      and accepted  from your  co-accused      other  than   JMM   &   JD(A)   MPs      mentioned above  a sum  of Rs.  280      lacs for yourself and other JMM MPs      named  above   other   your   legal      remuneration as  a motive or reward      for  defeating  above  referred  no      confidence motion moved against the      then  Government  of  Congress  (I)      headed  by   your  co-accused  P.V.      Narsimha Rao  and thereby  you have      committed an offence punishable u/s      7  of   P.C.  Act   and  within  my      cognizance."      "Thirdly you  during the  aforesaid      period and  at the aforesaid places      being  a   public   servant   while      functioning   in   your   aforesaid      capacity of Member of Parliament by      corrupt or  illegal  means  and  by      abusing your  position  as  a  said      public   servant    obtained    for      yourself or  your other  co-accused      i.e.  JMM   MPs  named   above  the      pecuniary advantage  to the  extent      of  Rs.   280  lacs   and   thereby      committed an offence punishable u/s      13(2) read with Section 13(1)(d) of      P.C..    Act    and    within    my      cognizance." The Charge  under Section 12 of the Act against A-1, A-2, A- 14 and A-15 is in these terms :-      "Secondly you  P.V. Narsimha Rao in      pursuance of the aforesaid criminal      conspiracy  during   the  aforesaid      period and  at the aforesaid placed      abetted the  commission of  offence      punishable u/s  7  of  P.C  Act  by      above referred  JMM and  Janta  Dal      (A)  MPs   and  thereby   you  have      committed an offence punishable u/s      12 of  the  P.C  Act  and  with  my      cognizance." The two  questions arising  for consideration  can  be  thus formulated :-      (1) Does  Article 105  of the  Constitution confer  any      immunity  on   a  Member   of  Parliament   from  being      prosecuted in a criminal court for an offence involving      offer or acceptance of bribe ?      (2) Is  a Member  of Parliament excluded from the ambit      of the  1988 Act  for the reason that : (a) he is not a      person who  can be  regarded as  a "public  servant" as      defined under Section 2(c) of the 1988 Act, and  (b) he      is not  a person  comprehended in  clauses (a), (b) and      (c) of  sub-section (1)  of Section  19 and there is no      authority  competent   to  grant   sanction   for   his      prosecution under the 1988 Act? Immunity From Prosecution      In order  to answer  the first  question  it  would  be necessary to  examine the  scope and ambit of the protection available to  a Member of Parliament under Article 105 which deals with  the powers,  privileges and  immunities  of  the Houses of  Parliament and  its members.  Before we undertake this task,  we would briefly set out the prevailing state of

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law in  the United  Kingdom a  other countries following the common law.      UNITED KINGDOM  :   During the  rule of  the Tudor  and Stuart Kings  the Commons  had to  wage a bitter struggle to assert their  supremacy which  culminated  in  the  Bill  of Rights, 1989  whereby it  was secured  "that the  freedom of speech and debates or proceedings in Parliament ought not to be impeached  or questioned  in any  court or  place out  of Parliament" (Article 9). On May 2. 1695 the House of Commons passed a  resolution whereby  it resolved that "the offer of money, or  other advantage,  to any Member of Parliament for the promoting  of any  matter whatsoever, depending or to be transacted in Parliament is a high crime and misdemeanor and tends to the subversion of the English constitution". In the spirit of  this resolution,  the offering  to  a  Member  of either House of a bribe to influence him in his conduct as a Member or  of any  fee or  reward  in  connection  with  the promotion of  or opposition  to any bill, resolution, matter or thing  submitted or intended to be submitted to the House or any  committee thereof,  has been  treated as a breach of privilege. [See  : May’s Parliamentary Practice, 21" Edn. p. 128]. In  its  report  submitted  in  July  1976  the  Royal Commission on  Standards of  Conduct in Public Life (chaired by Lord  Salmon) has pointed out that "neither the statutory nor the  common law  applies to  the  bribery  or  attempted bribery  of  a  Member  of  Parliament  in  respect  of  his Parliamentary activities but "corrupt transactions involving a Member  of Parliament  in  respect  of  matters  that  had nothing to  do with  his parliamentary  activities would  be caught by  the ordinary criminal law" (page 98, para 307 and 308). The  Salmon Commission  has  observed  that  sanctions against bribery  introduced by  the criminal  law  in  other fields  have  now  outstripped  whatever  sanctions  may  be exerted through Parliament’s own powers of investigation and punishment and  the Commission  was of  the view  there is a strong  case   for  bringing  such  malpractice  within  the criminal  law.  According  to  the  Salmon  Commission,  the Committee of Privileges and the Select Committee on Members’ Interests  do   not  provide   an  investigative   machinery comparable to that of a police investigation and that having regard to the complexity of most investigations into serious corruption special  expertise is  necessary for this type of inquiry. (para  310, pp.  98, 99). The Salmon Commission has recommended :-      "Membership  of   Parliament  is  a      great honour  and carries with it a      special  duty   to   maintain   the      highest standards  of probity,  and      this  duty  has  almost  invariably      been       strictly       observed.      Nevertheless in  view of our report      as a  whole, and  especially in the      light of  the points set out in the      foregoing paragraph,  we  recommend      that  Parliament   should  consider      bringing  corruption,  bribery  and      attempted bribery  of a  Member  of      Parliament    acting     in     his      parliamentary capacity  within  the      ambit of  the criminal  law." [para      311 p. 99] During the  course of the debate in the House of Lords, Lord Salmon said :-      "To my mind equality before the law      is one  of the  pillars of freedom.

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    To say  that immunity from criminal      proceedings  against   anyone   who      tries  to   bribe   a   Member   of      Parliament  and   any   Member   of      Parliament who  accepts the  bribe,      stems from  the Bills  of Rights is      possibly a serious mistake." After quoting the Bill of Rights Lord Salmon continued :-      "Now this  is a charter for freedom      of speech  in the House it is not a      charter for corruption. To my mind,      the Bill  of Rights,  for which  no      one has  more respect  than I have,      has no  more to  do with  the topic      which we  are discussing  that  the      Merchandise Marks Act. The crime of      corruption  is  complete  when  the      bribe  is   offered  or   given  or      solicited or taken."      The correctness  of the  statement in the Report of the Salmon Commission that ‘common law does not apply to bribery or attempted bribery of a Member of Parliament in respect of his parliamentary  activities, has  been  doubted  by  Prof. Graham Zellick who has said that Sir James Fitzjames Stephen appears to be the only writer to have taken the same view in his Digest  of the  Criminal Law  (1878) art.  118, and that there is nothing in the English authorities which compels to the conclusion  that a  Member of Parliament is not a public officer and  is not punishable at common law for bribery and breach of  trust. [See : Grahma Zellick : Bribery of Members of Parliament and the Criminal Law, 1979 Public Law p. 31 at pp. 39, 40].      The question  whether   offering  of  a  bribe  to  and acceptance of the same by a Member of Parliament constitutes an offence  at common law came up for consideration before a criminal court (Buckley J.) in 1992 in R.V. Currie & Ors. In that case  it was  alleged that  a Member  of Parliament had accepted bribes  as a  reward for  using his  influence as a Member in  respect of application for British nationality of one of  the persons  offering the  bribe. The indictment was sought to  be quashed on the ground that bribery of a Member of Parliament is not a crime and that in any event the court has no  jurisdiction and  Parliament alone  can try a member for bribery,  the  matter  being  covered  by  parliamentary privilege. The  learned Judge  ruled against  the contention and held :-      "That  a   member   of   Parliament      against whom there is a prime facie      case of corruption should be immune      from prosecution  in the  courts of      law is  to my  mind an unacceptable      proposition at  the present time. I      do not believe it to be the law." In 1994  the  Attorney  General  advised  the  Committee  of Privileges of  the House  of Commons  that, in  his opinion, though bribery  of a  Member was not a statutory offence, it might be  an  offence  at  the  common  law.  [See  :  May’s Parliamentary Practice,  22nd End, p. 114]. The Committee on Standards in  Public Life,  Chaired  by  Lord  Nolan  (Nolan Committee) in   its  first report submitted in May 1995, has said :-      "There is one area of conduct where      a need  already exists  to clarify,      and  perhaps  alter,  the  boundary      between the  courts and Parliament.

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    Bribery  of   a  Member,   or   the      acceptance of  a bribe by a Member,      is contempt  of Parliament  and can      be punished  by the House. The test      which the  House  would  apply  for      bribery would  no doubt  be similar      to that  which  would  apply  under      Common Law.  However  it  is  quite      likely that  Members of  Parliament      who accepted  bribes in  connection      with  their   Parliamentary  duties      would  be   committing  Common  Law      offences which  could be  tried  by      the  courts.  Doubt  exists  as  to      whether the  courts  or  Parliament      have jurisdiction  in such  cases."      {para 103]      "The  Salmon   Commission  in  1976      recommended that  such doubt should      be  resolved  by  legislation,  but      this has  not been  acted upon.  We      believe   that    it    would    be      unsatisfactory to  leave the  issue      outstanding when  other aspects  of      the law  of Parliament  relating to      conduct  are  being  clarified.  We      recommend   that   the   Government      should now  take steps  to  clarify      the law  relating to the bribery of      or the  receipt of  a  bribe  by  a      Member of  Parliament.  This  could      usefully  be   combined  with   the      consolidation of the statute law on      bribery    which     Salmon    also      recommended, which  the  government      accepted, but  which has  not  been      done. This  might be  a task  which      the  Law   Commission  could   take      forward." [para 104] It appears  that the  matter is  being considered by the Law Commission. In  the Law  Commission, Consultation  Paper No. 145,  reference   has  been  made  to  a  document  entitled ‘Clarification of the law relating to the Bribery of Members of Parliament’,  published by  the Home  Office in  December 1996,  whereby   the  Select   Committee  on  Standards  and Privileges has  been invited  to consider the following four broad options :-      (1)  to rely solely on Parliamentary privileges to deal           with accusations  of the  bribery  by  Members  of           Parliament;      (2)  subject  Members  of  Parliament  to  the  present           corruption statutes in full;      (3)  distinguish between  conduct which should be dealt           with by  the criminal law and that which should be           left to Parliament itself, and      (4)  make criminal  proceedings subject to the approval           of the relevant House of Parliament. AUSTRALIA :  Even though  Article 9 of the Bill of Rights is applicable in  Australia but  as far  back as  in  1975  the Supreme Court  of New  South Wales  held that  an attempt to bribe a  Member of  the Legislative  Assembly  in  order  to influence his  vote was a criminal offence, a misdemeanor at common law.[See : R.V. White, 13 SCR (NSW) 332].      The said  decision in  White was  approved by  the High Curt of  Australia in R.V. Boston & Ors., (1923) 33 CLR 386.

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In that  case three  persons, namely, Walter James Boston, a member of  the Legislative Assembly of New South Wales, John Andrew Harrison  and Henry  Ernest Mitchelmore, were alleged to have unlawfully conspired together and with other persons that certain  large sums  of money should be corruptly given to Walter  James Boston  to use  his position  to secure the inspection of  , acquisition  and the  payment in  cash  for certain estates  by the  Government of  New South  Wales and which estates were to be paid for out of the public funds of the said  State and  to put  pressure upon  the Minister for Lands and  other officers  of the  Crown to inspect, acquire and to  pay cash for certain estates. The trial Judge upheld the demurrer  to the  charge by the defendants on the ground that  the  matters  alleged  did  not  include  a  provision respecting voting  in Parliament.  In the  High Court it was not disputed  by the  defendants that  an agreement  to  pay money to  a member  of Parliament  in order to influence his vote in  Parliament would  amount to  a criminal offence. It was urged  that consistently  with the  allegations  in  the information, the agreement between the defendants might have been to  pay money  to Boston  to  induce  him  to  use  his position exclusively  outside Parliament,  not  by  vote  or speech  in   the  Assembly,  and  that  the  transaction  in connection with  which he  was to  use his  position to  put pressure  on  the  Minister  might,  consistently  with  the information, be one which would never come before Parliament and which,  in his  opinion and  in the opinion of those who paid him,  was highly  beneficial to the State; that such an agreement would  not amount  to a criminal offence, and that consequently the  informations is  bad. Rejecting  the  said contention,. Knox C.J. has observed :-      "In  my  opinion,  the  payment  of      money to,  and the receipt of money      by,  a   Member  of  Parliament  to      induce  him  to  use  his  official      position, whether inside or outside      Parliament,  for   the  purpose  of      influencing or  putting pressure on      a Minister  or other officer of the      Crown to  enter into or carry out a      transaction  involving  payment  of      money out  of the public funds, are      acts   tending    to   the   public      mischief,  and   an  agreement   or      combination to do such acts amounts      to a  criminal  offence.  From  the      point of view of tendency to public      mischief I  can see  no substantial      difference between  paying money to      a member  to induce  him to use his      vote in  Parliament in a particular      direction and  paying him  money to      induce him to use his position as a      member outside  Parliament for  the      purpose of  influencing or  putting      pressure  Ministers.  A  member  of      Parliament   cannot    divest   his      position  of  the  right  which  it      confers  to   take  part   in   the      proceedings of Parliament he cannot      ‘use his  position as  a member  of      Parliament’   stripped    of    its      principal attribute.  The influence      which his  position as  a member of      Parliament enables  him to exert on

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    a Minister  has its  source in  his      right   to    sit   and   vote   in      Parliament, and it would be idle to      pretend  that  in  discussions  and      negotiations between a Minister and      a member  that right,  or the power      it confers  on  a  member,  can  be      disregarded or  ignored. The tenure      of office  of the  Minister and his      colleagues may  be dependent on the      vote  or  on  the  abstention  from      voting of  an individual member, or      even on his words or his silence in      Parliament." [pp. 392, 393] Similarly, Issacs and Rich JJ, have said :-      "It  is  impossible  to  sever  the      voluntarily  assumed   intervention      departmentally from the legislative      position to  which by  custom it is      recognised as  incidental. A member      so intervening speaks as member and      is dealt with as member, and not as      a private  individual. His ulterior      power   of   action,   though   not      intruded   into   observation,   is      always existent and is always known      to  exist.   It  is  scarcely  even      camouflaged. The importance of even      one   parliamentary   vote   on   a      critical occasion  is not  entirely      unknown." [p. 403] Higgins J.,  after stating  that it  was not disputed by the counsel for  the defendants  that if the agreement were that the member  should use  his votes or his action in the House to secure  the acquisition  of the land, the agreement would be criminal conspiracy, expressed the view that he could not read the  count as ‘confining the agreement to action of the member outside  the House’  and that  the words  ‘to use his position as such member’ primarily refer to an action in the House. The learned Judge, however, held :-      "A member  is the  watch-dog of the      public; and  Cerberus must  not  be      seduced from  vigilance by a sop. I      see no reason to doubt that even if      the  count   were  confined  to  an      agreement as  to the  action of the      member outside  the House-action in      which the  member used his position      as member-the agreement would be an      indictable conspiracy." [p. 410]      Gavan  Duffy   and  Starke  JJ.,  in  their  dissenting judgment, while holding that the acts charged as intended to be done  by the defendant Boston, however important they may be, would not be malversation in his office, or acts done in his office,  unless they  were done-in  the discharge of his legislative functions, have said :-      "It cannot  be denied that a member      of  Parliament   taking  money   or      agreeing to take money to influence      his vote in Parliament is guilty of      a high  crime and misdemeanour, and      that an  agreement to  bring  about      such a  state of things constitutes      a criminal  conspiracy; nor  can it      be denied  that an  agreement which

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    has   the   effect   of   fettering      parliamentary or  executive  action      may sometimes  be as  dangerous  to      the   community   as   the   direct      purchase of a member’s vote; and it      may be  that, under t he words used      in   the   count   which   we   are      considering, facts  might be proved      which would  constitute a  criminal      conspiracy." [pp. 413, 414] Section 73A  of the Crime Act, 1914 in Australia makes it an offence for  members of  the Australian Parliament to accept or be  offered a bribe. Under the said provision a member of either House  of Parliament  who asks  for  or  receives  or obtains, or  offers or  agrees to  ask  for  or  receive  or obtain, any  property or  benefit of any kind for himself or any other  person, on  an understanding that the exercise by him of  his duty  or authority as such a member will, in any manner, be  influenced of affected, is guilty of an offence. So also  a person  who, in  order to  influence or  affect a member of  either House of Parliament in the exercise of his duty or  authority as  such a  member or  to induce  him  to absent himself  from the  House of which he is a member, any committee of   the house or from any committee of both House of the  Parliament, gives  or confers, or promises or offers to give or confer, any property or benefit of any kind to or on the  member or  any other person is guilty of an offence. [See : Gerard Carney - Conflict of Interest : A Commonwealth Study of Members of Parliament.p. 124].      CANADA : In the case of R.V Bunting, (1984-5) 7 Ontario Reports 524,  the defendants  had moved  for quashing  of an indictment for  conspiracy to  bring about  a change  in the Government of  Province of Ontario by bribing members of the Legislature so  vote against  the Government.  It was argued that  bribery   of  a  member  of  Parliament  is  a  matter concerning Parliament  or Parliamentary  business and is not an indictable  offence at  common law and that the exclusive jurisdiction to  deal  with  such  a  case  rests  with  the Legislative Assembly  according to  t he  law and  custom of Parliament. Rejecting the said contention, Wilson CJ. held:-      "It is  to my  mind  a  proposition      very  clear   that  his  Court  has      jurisdiction over  the  offence  of      bribery as  at the  common law in a      case of  this kind,  where a member      of  the   Legislative  Assembly  is      concerned either  in the  giving or      in the offering to give a bribe, or      in the  taking  of  it  for  or  in      respect of  any of  his duties as a      member of  that Assembly; and it is      equally clear  that the Legislative      Assembly had  not the  jurisdiction      which this  Court has  in a case of      the kind;  and  it  is  also  quite      clear that  the ancient  definition      of bribery  is not  the  proper  or      legal definition  of that offence."      [p. 542] Armour J. was of the some view and has said :-      "I think  it beyond  doubt that the      bribery  of   a   member   of   the      Legislative   Assembly    of    the      Province of  Ontario to  do any act      in  his  capacity  as  such  is  an

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    offence at  the common  law, and is      indictable  and   punishable  as  a      misdemeanour." [p. 555] O’Connor J,  in his dissenting judgment, held that the bribe of a member of Parliament, in a matter concerning Parliament or Parliamentary  business, is  not an indictable offence at common law, and has not been made so by any statute.      Section 108  of the  Criminal Code in Canada renders it an offence  for a  bribe to  be offered  to or accepted by a provincial or  federal member,  while in  Federal Canada and several of  the Provinces  the acceptance  of a reward etc., for promoting  a  matter  within  Parliament  constitutes  a breach of  privilege. [See  : Gerard  Carney :  Conflict  of Interest :  A Commonwealth Study of Members of Parliament, p 123].      Other Commonwealth  Countries  :  After  examining  the anti-corruption  measures   in  the   various   Commonwealth countries, Gerrard Carney has concluded :-      "Most  countries  treat  corruption      and   bribery    by   Members    of      Parliament as  a  criminal  offence      rather  than   as   a   breach   of      privilege."      [See :  Gerard Carney : Conflict of      Interest :  A Commonwealth Study of      Members of Parliament, p 123].      UNITED STATES  ; Article  1(6) of  the US  Constitution contains the  ‘Speech or  Debate Clause’ which provides that "for any  speech or debate in either House, they (Members of the Congress)  shall not  be questioned in any other place". In 1853  the Congress,  by statute, declared a member liable to indictment  as for  a high  crime and misdemeanour in any court  of  the  United  States  for  accepting  compensation intended to  influence a  vote or  decision on  any question brought before  him in  his official  capacity. In  1862 the Congress enacted another statute to penalise legislators who received money  for votes or influence in any matter pending before Congress  and in  1864 Conflict  of Interest statutes barred Congressmen  from receiving  compensation  for  their services  before   any  agency.  The  Conflict  of  Interest Statutes were  revised in  1962  and  are  contained  in  18 U.S.C.(1964). [See : Note, The Bribed Congressmen’s Immunity from Prosecution, (1965-66) 75 Yale L.J. 335, at p. 341].      A distinction  is, however, made between the conduct of a Member connected with the proceedings of the House and his conduct not  in the  House  but  in  connection  with  other activities as  a Member  of the  Congress.  The  speech  and debate clause  does not  give any  protection in  respect of conduct "that  is in  no sense related to due functioning of the legislative powers". [See : United Stated v. Johnson, 15 L Ed  2d 681, at p. 684]. In Burton v. United States, 202 US 344, the US Supreme Court upheld the conviction of a Senator who had  been bribed in order to get a mail fraud indictment quashed  under   the  rationale  that  Burton’s  attempt  to influence the  Post Office  Department was  unprotected non- legislative conduct.  The  question  regarding  immunity  in respect of  actions connected  with the  proceedings of  the House has  been considered  by the US Supreme Court in three decisions, namely,  Johnson, United  State v. Brewster, 33 L Ed 2d 507, and United States v. Helstoski, 61 L Ed 2d 12.      In Johnson  a former US Congressman, named Johnson, and three  co-defendants   were  found   guilty  of   conspiracy consisting  of   an  agreement  among  Johnson  and  another Congressman and  two other  co-defendants who were connected with a  Maryland saving and loan institution whereby the two

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Congressmen would  exert  influence  on  the  Department  of Justice to  obtain the  dismissal of  pending indictments of the loan  company and  it officers on mall fraud charges and as part  of  this  general  scheme  Johnson  read  a  speech favourable to  independent saving  and loan  associations in the House  and that  the company distributed copies to allay apprehensions of  potential  depositors  and  that  the  two Congressmen approached  the Attorney  General and  Assistant Attorney General  in charge  of the  Criminal  Division  and urged them  to review  the indictment and for these services Johnson received  substantial sums  in the  form of campaign contribution and  legal  fees.  Harlan  j.,  delivering  the opinion of  the Court,  held that  the  prosecution  of  the conspiracy count  being dependent  upon an intensive inquiry with respect  to the  speech  on  the  floor  of  the  House violated the  Speech or  Debate Clause  so as to warrant the granting of  a new  trial on  the conspiracy  count with all elements offensive  to the  Speech or  Debate Clause  to  be eliminated. The  Speech or  Debate Clause  was given a wider construction so  as to exclude the motive for performing the legislative  acts   being  enquired   into  in   a  criminal prosecution.      In Brewster  a former  US Senator,  named Brewster, had been charged  with accepting  bribes and  the allegation was that while  he was  a Senator  an d  a member  of the Senate Committee on  Post and  Civil Service he received and agreed to receive  sums in  return  for  being  influenced  in  his performance of  official acts in respect of his action, vote and decision  on postage  rate legislation  which  had  been pending before  him in his official capacity. Brewster moved to dismiss  the indictment  on the ground that he was immune from prosecution  for any  alleged act of bribery because of the Speech or Debate Clause. The District Court accepted the said contention  and dismissed the counts of the  indictment which applied to Brewster. The said judgment of the District Court was  reversed by  the US  Supreme Court and the matter was remanded.  Burger CJ.,  who delivered the opinion of the Court on  behalf of  six Judges,  held that  the  Speech  or Debate Clause  protects the members of Congress from inquiry into legislative  acts or  into  the  motivation  for  their actual performance  of legislative  acts  and  it  does  not protect them  from other  activities they undertake that are political, rather  than  legislative,  in  nature  and  that taking a  bribe for  t he  purpose of  having one’s official conduct influenced is not part of any legislative process or function and  the Speech  or Debate  Clause did  not prevent indictment and prosecution of Brewster for accepting bribes. Brennan and White JJ. (joined by Douglas J.) disssented. The Court construed  the  Speech  or  Debate  Clause  as  giving protection to  an act  which  was  clearly  a  part  of  the legislative process - the due functioning of the process. It was held  that the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but  to preserve  the  independence  and  thereby  the integrity of  the legislative  process  and  that  financial abuse, by way of bribes, would grossly undermine legislative integrity and  defeat the  right of  the  public  to  honest representation. The learned Chief Justice has observed :-      "Taking a  bribe is,  obviously, no      part of  the legislative process or      function; it  is not  a legislative      act. It  is not, by any conceivable      interpretation, an act performed as      a part of or even incidental to the      role of a legislator." [p. 526]

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    In  Helstoski   a  former   member  of   the  House  of Representatives,  named   Heistoski,  was   prosecuted   for accepting  money   for  promising   to  introduce   and  for introducing  private   bills   which   would   suspend   the application of  the immigration  laws so  as  to  allow  the aliens to  remain in the country. Helstoski moved to dismiss the indictment  in the  District Court  contending that  the indictment violated  the Speech  or Debate  Clause. The said motion was rejected by the District Court though it was held that the  Government would  not be allowed to offer evidence at trial  of the performance of the past legislative acts by the Congressmen. The said judgment was affirmed by the Court of Appeals  which judgment  was  also  affirmed  by  the  US Supreme Court by majority (Brennan J dissenting). Burger CJ. has held  that references  to   past legislative  acts of  a Member cannot  be admitted  without considering  the  values protected by  the Speech or Debate Clause which was designed to preclude prosecution of Members for legislative act.      Having taken  note of the legal position as it prevails in the  various countries,  we may  now  examine  the  legal position in this regard in India.       Offering  of  a  bribe  or  payment  to  a  Member  of Parliament influence  him in  his conduct  as a  member  and acceptance of  a bribe  by such  a Member  is treated  as  a breach of  privilege by  Indian Parliament  even  though  no money has  actually changed  hands. [See  : M.N. Kaul & S.L. Shakdher : Practice and Procedure of Parliament 4th Edn., at p. 254].  As early  as  in  1951  an  ad  hoc  Committee  of Parliament was  appointed to  investigate  the  conduct  and activities of  a member  , H.G.  Mudgal, in  connection with some of  his dealings  with  a  business  association  which included  canvassing   support  and   making  propaganda  in Parliament on certain problems on behalf of that association in  return   for  alleged   financial  and   other  business advantages. A ad hoc Committee of the House was appointed to consider whether  the conduct  of the  member concerned  was derogatory to the dignity of the House and inconsistent with the standards  which Parliament  is entitled  to expect from members. The  Committee found the member guilty of receiving monetary  benefits  for  putting  questions  in  Parliament, moving amendments to the Forward Contracts (Regulation) Bill and urging  interviews with  the Ministers, etc. and it held that the  conduct of  H.G. Mudgal   was  derogatory  tot  he dignity of  the House  and inconsistent  with the  standards which Parliament  was entitled to expect of its members. The Committee recommended  the expulsion  of the member from the House. While  the said  report was  being considered  by the House,  the  member,  after  participating  in  the  debate, submitted his  resignation from the membership of the House. In the  resolution the  House accepted  the findings  of the Committee and  deprecated  the  attempt  of  the  member  to circumvent the  effects of the motion expelling him from the House, by  his resignation,  which constituted a contempt of the House  and aggravated the offence. [SEE: Kaul & Shakdher at pp. 284, 285].      It does  not, however, constitute breach or contempt of the House  if the offering of payment of bribe is related to the business  other than  that of the House. In 1974 the Lok Sabha considered  the matter relating to offer or payment of bribe in  the Import  Licences case  wherein it  was alleged that a  Member of  Lok Sabha  had  taken  bribe  and  forged signatures of  the  Members  for  furthering  the  cause  of certain applicants. The question of privilege was disallowed since it was considered that conduct of the Member, although improper, was  not related to the business of the House. But

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at the  same time  it was  held that  as the  allegation  of bribery and  forgery were  very serious  and unbecoming of a Member of  Parliament, he  could be  held guilty of lowering the dignity  of the House. [See: Kaul & Shakdher at pp. 254. 255].      The question  whether a  Member of Parliament can claim immunity from  prosecution before a criminal court on charge of bribery  in relation to proceedings in Parliament has not come up  for consideration before the court and it has to be examined in  the light  of the  provisions contained  in the Constitution. The  relevant provision which provides for the powers, privileges  and immunities  of  Parliament  and  its members and  its committees  is contained  in Article 105 of the Constitution.  The said  Article, in  the original form, read as follows :-      "105. Powers,  Privileges, etc.  of      the House  of Parliament and of the      members  and  committees  thereof.-      (1) Subject  to the  provisions  of      this Constitution  and to the rules      and standing  orders regulating the      procedure of  Parliament, there  sh      all  b   e  freedom  of  speech  in      Parliament.      (2) No  Member of  Parliament shall      be liable to any proceedings in any      court in  respect of  anything said      or  any   vote  given   by  him  in      parliament   or    any    committee      thereof, and  no person shall be so      liable   in    respect    of    the      publication   by   or   under   the      authority  of   either   House   of      Parliament  of  any  report  paper,      votes or proceedings.      (3) In  other respects, the powers,      privileges and  immunities of  each      House of  Parliament,  and  of  the      members and  the committees of each      House, shall  be such  as may  from      time  to   time   be   defined   by      Parliament by  law,  and  until  so      defined,  shall  be  those  of  the      House of  Commons of  Parliament of      the  United  Kingdom,  and  of  its      members  and   committees,  at  the      commencement of this Constitution.      (4) The  provisions of clauses (1),      (2),  and   (3)  shall   apply   in      relation to  persons who  by virtue      of this Constitution have the right      to speak  in, and otherwise to take      part in the proceedings of, a House      of  Parliament   or  any  committee      thereof as  they apply  in relation      to members of the Parliament." By Constitution  (Forty-fourth Amendment)  Act, 1978  clause (3) was replaced but he following clause :-      "(3) In other respects, the powers,      privileges and  immunities of  each      House of  Parliament,  and  of  the      members and  the committees of each      House, shall  be such  as may  from      time  to   time   be   defined   by      Parliament by  law, an  d until  so

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    defined, shall  be  those  of  that      House  and   of  its   members  and      committees    immediately    before      coming into  force of Section 15 of      the   Constitution    (Forty-fourth      Amendment) Act, 1978."      Clause (1)  secures freedom  of speech in Parliament to its members.  The said freedom is "subject to the provisions of this  Constitution and  to the  rules and standing orders regulating the  procedure of Parliament". The words "subject to the  provisions of  the Constitution" have been construed to mean  subject to the provisions of the Constitution which regulate the  procedure of Parliament, viz., Article 118 and 121. [See  : Pandit M.S.M Sharma v. Shri Sri Krishna Sinha & Ors., 1959  Supp. (1)  SCR  806,  at  o.  856,  and  Special Reference No.  1 of  1964, also  known  as  the  Legislative Privileges case,  1965 (1) SCR 413, at p. 441].  The freedom of speech  that is  available to Members of Parliament under Article 105(1)  is wider  in amplitude  than  the  right  to freedom of  speech and  expression guaranteed  under Article 19(1)(a) since the freedom of speech under Article 105(1) is not subject to the limitations contained in Article 19(2).      Clause (2)  confers immunity in relation to proceedings in courts.  It can  be divided  into two parts. In the first part immunity  from liability  under any  proceedings in any court is  conferred on  a Member of Parliament in respect of anything said  or any vote given by him in Parliament or any committee thereof.  In the  second  part  such  immunity  is conferred on  a person in respect of publication by or under the authority  or either  House of Parliament of any report, paper, votes  or proceedings.  This immunity  that has  been conferred under  Clause (2)  in respect  of anything said or any vote  given by  a Member  in Parliament or any committee thereof and  in respect  of  publication  by  or  under  the authority of  either House  of  Parliament  of  any  report, paper, votes  or proceedings,  ensures that  the freedom  of speech that  is granted  under clause  (1) of Article 105 is totally  absolute   an  d  unfettered.  [See  :  Legislative Privileges Case pp. 441, 442].      Having secured  the freedom  of speech in Parliament to the members  under clause  (a) and (2), the Constitution, in clause (3) of Article 105, deals with powers, privileges and impunities of the House of Parliament and of the members and the committees thereof in other respects. The said clause is in two  parts. The first part empowers Parliament to define, by law,  the powers, privileges and immunities of each House of Parliament  and of the members and the committees of each House.  In  the  second  part,  which  was  intended  to  be trasitional in  nature, it  was provided that until they are so defined by law the said powers, privileges and immunities shall be those of the House of Commons in the United Kingdom and of its members and committees at the commencement of the Constitution. This  part of  the provision  was on  the same lines as  the provisions  contained in  Section  49  of  the Australian Constitution  an d  Section 18  of  the  Canadian Constitution. Clause (3), as substituted by the Forty-fourth Amendment of  the Constitution,  does not make any change in the content  and it  only seeks to omit future reference tot he house  of Commons  of Parliament  in the  United  Kingdom while preserving  the position  as it  stood on  the date of coming into force of the said amendment.      Clause (4)  of Article  105 makes  the  privileges  and immunities secured  under Clauses  (1) and (3) applicable to persons who  by virtue of the Constitution have the right to speak otherwise  to take  part in the proceedings of a House

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of Parliament  or any  committee thereof  as they  apply  in relation to Members of Parliament.      Shri P.P.  Rao, Shri  D.D. Thakur and Shri Kapil Sibal, the learned  senior counsel  appearing for  the  appellants, have submitted  that having regard tot he purpose underlying the grant  of immunity  under clause  (2)  of  Article  105, namely, to  secure full  freedom for  a Member of Parliament while participating  in the  proceedings in the House or its committees by way of speech or by casting his vote, the said provision should  be given  a wide  construction  so  as  to enable the  Member to exercise his said rights without being exposed to legal proceedings in a court of law in respect of anything said  or any vote given by him in Parliament or any committee thereof.  It has  been submitted that the immunity from liability  that has  been  conferred  on  a  Member  of Parliament under clause (2) of Article 105 would, therefore, extend to  prosecution of  member on  a charge  o bribery in making a  speech or  giving his  vote in  the House  or  any committee as  well as  the charge  of conspiracy  to  accept bribe for  making a speech or giving the vote. It is claimed that by  virtue of  the immunity granted under clause (2) of Article 105  the offer  to and  acceptance by  a  Member  of Parliament of  bribe in  connection with his making a speech or giving  the vote  would not constitute a criminal offence and, therefore,  neither the  member receiving the bribe nor the person offering this bribe can be prosecuted and so also there can be no offence of criminal conspiracy in respect of such offer  and acceptance  of bribe. It has been urged that on that  view neither the charge of conspiracy under Section 120B IPC  nor the  charges in  respect  of  the  substantive offences under  the 1988  Act can  be sustained  against the appellants. Strong  reliance has been placed on the decision of the  Court of  Queen’s Bench in Ex parte Wason, (1869) LR QBD 573,  as well  as on  the judgment  of the  U.S. Supreme Court (Harlan J.) in Johnson and on the dissenting judgments of Brennan J. and White J. in Brewster.      The learned  Attorney General,  on the  other hand, has urged that  the immunity granted under clause (2) of Article 105 gives  protection to  a Member  of Parliament  from  any liability for a speech made by him or a vote given by him in the House  or any  committee thereof,  but the said immunity cannot be  extended to confer immunity from prosecution of a Member for  having received  bribe or  having entered into a conspiracy to  receive bribe  for the  purpose of  making  a speech or  giving a  vote in  the House or in any committees thereof. The learned Attorney General has placed reliance on the judgment  of the  U.S. Supreme  Court  (Burger  CJ.)  in Brewster,  the   Canadian  decision   in  Bunting   and  the Australian decisions  in White  and Boston and the ruling of Buckley J. in R.V. Currie & Ors.      Before we  proceed to consider these submissions in the light of  the provisions  contained in clause (2) of Article 105, we  may refer to the decision in Ex parte Wason and the other decision in which it has been considered.      In Ex  parte Wason  information had  been laid by Wason before the  Magistrate wherein  it was  stated that  the had given Eari  Russell a  petition to be presented in the House of Lords  wherein the  Lord Chief  Baron  was  charged  with wilful and  deliberate  falsehood  and  the  object  of  the petition was that the Lord Chief Baron might be removed from his office  by an  address of  both House  of Parliament and that Eari  Russell, Lord Chelmsford and the Lord Chief Baron conspired together  to prevent  the  course  of  justice  by agreeing to make statements which they knew to be untrue and that Eari  Russell, Lord Chelmsford and the Lord Chief Baron

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agreed to  deceive the  House of  Lords by  stating that the charge of  faleshood contained  in the  petition against the Lord Chief  Baron was  unfounded and false whereas they knew it to  be true.  The magistrate  refused to take applicant’s recognizance on  the ground  that no  indictable offence was disclosed by  the information.  The Court  of Queen’s  Bench upheld the said order of the magistrate and refused to grant the rule  sought  by  the  applicant.  Cockburn  CJ.,  after referring to  the information  which was  placed before  the magistrate, said :-      "Now inasmuch  as these  statements      were alleged  to have  been for the      purpose of preventing the prayer of      the petition,  and  the  statements      could  not  have  had  that  effect      unless made  in the House of Lords,      it seems  to me  that the  fair and      legitimate inference  is  that  the      alleged conspiracy was to make, and      that the  statements were  made, in      the  House   of  Lords.   I  think,      therefore,  that   the  magistrate,      looking at this and the rest of the      information,   was   warranted   in      coming to  the conclusion, that Mr,      Wason charged  and proposed to make      the substance  of  the  indictment,      that  these   three   persons   did      conspire to  deceive the  House  of      Lords by  statements  made  in  the      House of  Lords for  the purpose of      frustrating the  petition.  Such  a      charge could not be maintained in a      court of  law.  It  is  clear  that      statements  made   by  members   of      either House of Parliament in their      places in  the House,  though  they      might be untrue to their knowledge,      could not be made the foundation of      civil  or   criminal   proceedings,      however injurious  they might be to      the interest of a third person. And      a   conspiracy    to   make    such      statements would  not  makes  these      persons guilty  of it  amenable  to      the  criminal   law.,"   [p.   576]      [emphasis supplied] Blackburn J. said :-      "I perfectly  agree with my Lord as      to  what   the  substance   of  the      information is;  and when the House      is sitting  and statements are made      in either  House of Parliament, the      member making  them is not amenable      to the  criminal law.  It is  quite      clear that  no indictment  will lie      for  making   them,   nor   for   a      conspiracy  or  agreement  to  make      them, even though the statements be      false  to   the  knowledge  of  the      persons  making  them.  I  entirely      concur   in   thinking   that   the      information  did   only  charge  an      agreement to make statements in the      House of  Lords, and  therefore did

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    not charge any indictable offence."      [p. 576] Lush J. also said :-      "I cannot  doubt that  it charges a      conspiracy to  deceive the House of      Lords,   and   so   frustrate   the      application,  by  means  of  making      false statements in the house. I am      clearly of  opinion that  we  ought      not to allow it to be doubted for a      moment   that    the   motives   or      intentions  of  members  of  either      House cannot  be inquired  into  by      criminal proceedings  with  respect      to anything  they may  do or say in      the House." [p. 577] The observations if Cockburn CJ., with whom Blackburn J. has concurred, show  that the  substance of the information laid by Wason  was that  the alleged conspiracy was to make false statements and  that such  statements were made in the House of Lords  and that  the said  statements had  been made  the foundation  of   the  criminal  proceeding.  Though  in  the judgment there  is no  reference to Article 9 of the Bill of Rights but  the tenor of the abovequoted observations of the learned Judges leave no doubt that the judgment was based on that Article.  It has been so understood in later judgments. [See : R.V. Caurrie & Ors.].      Reliance  has   been  placed   by  Shri   Rao  on   the observations of  Lush J.  that "the motives or intentions of members of  either House cannot be inquired into by criminal proceedings with  respect to  anything they may do or say in the House".      In Johnson,  while dealing with the contention urged on behalf of  the Government  that the  Speech or Debate Clause was meant  to prevent only prosecutions based on the content of speech,  such as  libel actions, but not those founded on the antecedent  unlawful conduct of accepting or agreeing to accept a bribe, Harlan J. has observed :-      "Although  historically   seditious      libel   was   the   most   frequent      instrument     for     intimidating      legislators, this  has  never  been      the sole  form of legal proceedings      so employed,  and the  language  of      the Constitution  is framed  in the      broadest terms." [PP. 689, 690]      In order  to show  the broader  thrust of the privilege reference was  made by  the learned Judge to the decision in Ex parte Wason and the observations of Cockburn CJ. and Lush J/. have  been quoted.  The contention  that the  Speech  or Debate Clause  was not  violated because the gravamen of the count was  the  alleged  conspiracy,  not  the  speech,  was rejected by pointing out that "the indictment itself focused with particularity upon motives underlying the making of the speech and  upon its  contents". [p  690]. The learned Judge has further said :-      "We emphasise  that our  holding is      limited to  prosecutions  involving      circumstances   such    as    those      presented in  the case  before  us.      Our  decision   does  not  touch  a      prosecution which,  though as  here      founded on  a criminal  statute  of      general application,  does not draw      in question the legislative acts of

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    the defendant member of Congress or      his motives  for performing  them."      [pp. 690, 691]      "The making of the speech, however,      was only  a part  of the conspiracy      charge. With all references to this      aspect    of     the     conspiracy      eliminated, we think the Government      should not  be precluded from a new      trial on  this count,  thus  wholly      purged of elements offensive to the      Speech or Debate Clause.: [p. 691]      In Brewster Brennan J. and White J. in their dissenting judgments, have  referred to the earlier judgment in Johnson and the  decision in  Ex parte  Wason. Brennan J. was of the view that  Johnson "can  only be  read  as  holding  that  a corrupt agreement  to  perform  legislative  acts,  even  if provable without reference to the acts themselves may not be the subject  of a general conspiracy prosecution". [p. 533]. Burger CJ.  did not  agree with  this reading of Johnson and said :-      "Johnson thus stands on a unanimous      holding that  a Member  of Congress      may be  prosecuted under a criminal      statute    provided     that    the      Government’s case  does not rely on      legislative acts  or the motivation      for legislative acts. A legislative      act has  consistently been  defined      as  an   act  generally   done   in      Congress   in   relation   to   the      business before  it.  In  sum,  the      Speech or  Debate Clause  prohibits      inquiry  only   into  those  things      generally said or done in the House      or the Senate in the performance of      official  duties   and   into   the      motivation for   those  acts." [pp.      517, 518] After pointing  out that  the privileges in England is by no means free  form grave abuses by legislators, Burger CJ. has observed :-      "The authors  of  our  Constitution      were well  aware of  the history of      both the need for the privilege and      the abuses that could flow from the      sweeping safeguards.  In  order  to      preserve other  values, they  wrote      the privilege  so that it tolerated      and protects  behaviour on the part      of  Members   not   tolerated   and      protected  when   done   by   other      citizens, but  the shield  does not      extend beyond  what is necessary to      preserve  the   integrity  of   the      legislative process.’ [p. 521]      The learned  Chief Justice  took note  of the fact that "Congress is  ill-equipped to  investigate, try,  and punish its Members  for a  wide range  of behaviour that is lossely and incidentally  related to  the legislative  process"  and said :-      "In this sense, the English analogy      on which  the dissents  place  much      emphasis, and  the reliance  on  Ex      parte Wason,  LR 4  QB 573  (1869),

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    are inapt." [p. 521] While referring  to the observations made by Brennan J., the learned Chief Justice has observed :-      "Mr. Justice  Brennan suggests that      inquiry into  the alleged  bribe is      inquiry into  the motivation  for a      legislative act,  and it  is  urged      that   this    very   inquiry   was      condemned   as   impermissible   in      Johnson. That argument misconstrues      the  concept   of  motivation   for      legislative  acts.  The  Speech  or      Debate  Clause  does  not  prohibit      inquiry into illegal conduct simply      because  it   has  some   nexus  to      legislative functions.  In Johnson,      the  Court  held  that  on  remand,      Johnson could  be  retried  on  the      conspiracy-to-defraud   count,   so      long  as  evidence  concerning  his      speech on  the House  floor was not      admitted.   The   Court’s   opinion      plainly  implies   that   had   the      Government chosen  to retry Johnson      on that  count, he  could not  have      obtained immunity from prosecutions      by asserting  that the matter being      inquired into  was related  to  the      motivation for  his House  speech."      [p. 527] In his  dissenting judgment  White J., after referring to Ex parte Wason has observed :-      "The Wason court clearly refused to      distinguish  between   promise  and      performance;    the     legislative      privilege  applied  to  both."  [p.      546] The learned Judge then refers to Johnson and says :-      "I   find if  difficult to  believe      that  under   the   statute   there      involved the  Johnson  Court  would      have permitted  a prosecution based      upon  a   promise  to   perform   a      legislative act." [p. 546]. But in  Helstoski White  J. was  a  party  to  the  majority judgment delivered by Burger CJ. wherein it was held :-      "Promises by a member to perform an      act in  future are  not legislative      acts". [p. 23]      "But it  is clear from the language      of  the   clause  that   protection      extends only  to an  act  that  has      already been  performed. A  promise      to deliver a speech, to vote, or to      solicit other  votes at some future      dates is  not ‘speech  or  debate’.      Likewise a  promise to  introduce a      bill is not a legislative act." [p.      24]. In Bunting  Wilson CJ.,  has considered,  Ex parte Wason and has pointed  out that  in that  case the  alleged conspiracy could not  fall under  the head  of an  agreement to  do  an illegal act  because the truth of falsity of statements made by members  in Parliament could not b e enquired into by the court and  that it did not also fall under the head of doing

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an act,  nor necessarily  illegal, by  illegal means because there were  no illegal means used or to be used. The learned Chief Justice has, however, observed :-      "But if  these  three  persons  had      agreed that  the two members of the      House of  Lords should  make  these      false statements,  or vote  in  any      particular manner, in consideration      of a  bribe paid  or to  be paid to      them,  that   would  have   been  a      conspiracy  to   do  an   act,  not      necessarily illegal perhaps, but to      do  the   act  by   illegal  means,      bribery being  an  offence  against      the  law;   and  the   offence   of      conspiracy would have been complete      by reason  of the  illegal mans  by      which the act was to be effected.      That  offence   could   have   been      inquired into by the Court, because      the inquiry  into all that was done      would have  been of matters outside      of the  House of  Lords, and  there      could therefore be no violation of,      or  encroachment   in  any  respect      upon, the lex parliament". [p. 554] In R.  V. Currie  & Ors.  Buckley J.  has  referred  to  the observations of Wilson CJ. in Bunting and has ruled that the reasoning in  Ex parte  Wason would  not  apply  to  alleged bribery for  the proof of which no reference to goings on in Parliament would  be necessary.                        in      We may  now examine whether the decision Ex parte Wason has any  bearing on  the interpretation  of Article  105(2). Clauses (1)  and (2)  of Article  105 are interlinked, while clause (1)  secures to  the Members  freedom  of  speech  in Parliament, clause  (@) safeguards  and  protects  the  said freedom by conferring immunity on the Members from liability in respect  of anything  said or  any vote  given by  him in Parliament or  in any  committee thereof.  This is necessary because for  a regulatory  body like Parliament, the freedom of speech  is of  the utmost  importance and a full and free debate is  on the  essence of  Parliamentary  democracy.  In England this  freedom of  speech in Parliament is secured by Article 9  of the  Bill of Rights. Though clause (2) Article 105 appears to be similar to Article 9 of the Bill of Rights but a  closer look  would show  that they   certain aspects. Article 9  of  the  Bill  of  Rights,  by  prescribing  that "freedom of  speech and debates or proceedings in Parliament ought not  to be  impeached or  questioned in  any court  or place out  of Parliament",  confers immunity  in respect  of speech,  debates   or  proceedings   in   Parliament   being questioned in any court or place out of Parliament. The said immunity has  been construed  to precluded  what was said or done in  Parliament in the course of proceedings there being examined outside  Parliament for the purpose of supporting a cause of  action even though the case of action itself arose out of  something done  outside Parliament.  See : Church of Scientology of  California v. Johnson Smith, 1972 (1) All ER 378]. In an Australian case R. v. Murphy, (1986) 5 NSWLR 18, a question  arose whether  in the  course of criminal trial, the witness’s earlier evidence to the Select Committee could be put  to him in cross-examination with a view to showing a previous inconsistent  statement. Hunt  J.  in  the  Supreme Court of New South Wales, held that Article 9 of the Bill of

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Rights did  not prohibit  such cross-examination even if the suggestion was  made that  the evidence  given to the Select Committee was  a lie. He further held that the statements of the Select  Committee could  b e used to draw inferences and could  be analysed and be made the basis of submission.      In Prebble v. Television New Zealand Ltd., 12994 All ER 407.  Lord  Browne  Wilkinson,  speaking  for  the  Judicial Committee of  the Privy  Council, after  taking note  of the decision of Hunt J. in R. v. Murphy (supra), has said :-      "Finally, Hunt  J. based himself on      a narrow  construction  of  art  9,      derived from the historical context      in which it was originally enacted.      He   correctly    identified    the      mischief sought  to be  remedied in      1688  as  being,  inter  alia,  the      assertion by the King’s courts of a      rights  to   hold   a   member   of      Parliament  criminally  or  legally      liable for what he had done or said      in Parliament. From this he deduced      the  principle   that  art  9  only      applies to  cases in  which a court      is being  asked to expose the maker      of the statement to legal liability      for what he has said in Parliament.      This  view   discounts  the   basic      concept underlying  art 9  viz. the      need to  ensure so  far as possible      that a  member of  the  legislature      and witnesses  before committees of      the House  can speak freely without      fear that  what they say will later      be held against them in the courts.      The   important   public   interest      protected by  such privilege  is to      ensure that  the member  or witness      at  the   time  he  speaks  is  not      inhibited from  stating  fully  and      freely what he has to say. If there      were any exceptions which permitted      his  statement   to  be  questioned      subsequently, at  the time  when he      speaks in  Parliament he  would not      know whether  or  not  there  would      subsequently be a challenge to what      he is  saying. Therefore  he  would      not   have   the   confidence   the      privilege is  designed to protect."      [p. 415] The protection  given under  clause (2)  of Article  105  is narrower than  that conferred under Article 9 of the Bill of Rights in  the sense  that the  immunity conferred  by  that clause in  personal in nature and is available to the member in respect  of anything  said or in any vote given by him in the House or any committee thereof. The said clause does not confer an  immunity for challenge in the court on the speech or vote  given by  a Member  of Parliament.  The  protection given under  clause (2)  of Article  105 is  thus similar to protection envisaged  under the  construction placed by Hunt J. in  R v.,  Murphy [supra]  on Article  9 of  the Bill  of Rights which  has not  been accepted by the Privy Council in Prebble v.  Television New  Zealand Ltd.  The decision in Ex parte Wason  (supra), which  was given  in  the  context  of Article 9  of the  Bill of  Rights, can,  therefore, have no

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application in  the matter  of construction of clause (2) of Article 105.  Ex parte  Wason (supra),  which holds that the information laid  by Wason  did not  disclose any indictable offence, proceeds  on the  basis  that  statements  made  by members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings. The position  under clause  (2) of  Article 105 is, however, different. The  said clause does not prescribe that a speech made or  vote given by a member in Parliament cannot be made the basis  of civil or criminal proceedings at all. The said clause only  gives protection to the member who has made the speech  or   has  given  the  vote  from  liability  in  any proceeding in  a court  of law. Therefore, on the basis on t he decision  in Ex  parte Wason  (supra), it  cannot be said that no  offence was  committed by  those who are alleged to have offered  the illegal gratification and by those who had received  such   gratification  to   vote  against   the  No Confidence  Motion   and  for  that  reason  the  charge  of conspiracy and  abetment must  also fall.  On the  basis  of Article 105(2)  the claim  for immunity from prosecution can be made  only on  behalf of  A-3 to A-5 and A-16 to A-21 who are alleged  to have voted against the No Confidence Motion. As to  whether they  are entitled  to  such  immunity  under Article 105(2)  will, however,  depend on the interpretation of the provisions of Article 105(2).      As indicated  earlier, Article  105(2) is in two parts. In these  appeals we are required to consider the first part which provides  that no member of Parliament shall be liable to any  proceedings in any court in respect of anything said or any  vote given  by him  in Parliament  or any  committee thereof. The  immunity  that  has  been  conferred  by  this provision is  : (i)  only on  the Member of Parliament, (ii) with regard  to liability  in any  proceedings in any court, which would  include civil  as well as criminal proceedings, (iii) in  respect of anything said or any vote given by such Member, (iv) in Parliament of in any committee thereof.      Shri Rao has submitted that having regard to the object underlying the  provision, viz.,  to secure  the freedom  of speech in  Parliament to  the members,  the immunity granted under clause  (2) must be construed in a wide sense and just as the expression "anything" was construed in Tej Kiran Jain & Ors  v. N.  Sanjiva Reedy  & Ors.,  1971 (1) SCR 612, as a word of  widest import,  the expression "in respect of" must also be  given a  wide meaning  so as  to comprehend  an act having a  nexus or connection with the speech made or a vote given by a member in Parliament or any committee thereof and would include,  within its  ambit, acceptance  of bribe by a member in  order to  make a  speech or  to cast  his vote in Parliament or  any committee thereof in a particular manner. In support  of his  submission for giving a wider meaning to the expression "in respect of" Shri Rao h as relied upon the decisions of  this Court  in The  State of  Tripura  v.  The Province of East Bengal, 1951 (2) SCR 1; Tolaram Relumal and Anr. v.  The State  of Bombay,  1955 (1)  SCR 158;  and S.S. Light Railway Co. Ltd. v. Upper Doab Sugar Mills Ltd. & Anr. 1960 (2)  SCR 926, and the decision in Paterson v. Chadwick, 1974 (2) All ER 772.      The learned  Attorney General  has, on  the other hand, urged that  immunity granted under clause (2) of Article 105 is intended  to protect  a member form liability arising out of the speech made by him or vote given by him and it cannot be extended  to cover  the  conduct  of  a  member  who  has received bribe  or has  entered into  a conspiracy to commit the offence of bribery in order to make a speech or cast his

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vote in  Parliament. The  submission is  that the expression ‘in respect  of’ in  clause (2)  of Article  105 must  be so construed as  to ensure  that the  immunity conferred  under clause (2)  is only  available in respect of legitimate acts of a member of Parliament and it cannot be invoked to secure immunity against  any criminal  acts committed  by member in order to  make a speech or to give his vote in Parliament or in any  committee thereof. According to the learned Attorney General, the  expression ‘in  respect of’  in Article 105(2) must be  construed to   moon ‘foe’. Reliance has been placed by him  on the  decision of this Court in State of madras v. M/s Swastik Tobacco Factory, Vedaranyam, 1966 (3) SCR 79.      In Tej  Kiran Jain  the appellants had filed a suit for damages in  respect of defamatory statements alleged to have been made  by certain  members of Parliament on the floor of the Lok  Sabha during  a calling  attention motion. The said suit was  dismissed by  the High  Court on  the view that no proceedings could  be initiated  in respect of anything said on the  floor of  the House in view of Article 105(2) of the Constitution. Before  this Court  it was contended on behalf of the plaintiffs that the immunity under Article 105(2) was granted to  what was  relevant to the business of Parliament and  not   to  something  which  was  irrelevant.  The  said contention was rejected by the Court. It was observed :-      "The article confers immunity inter      alia in  respect of  ‘anything said      ....... in  Parliament’.  The  word      ‘anything’ is  of the widest import      and is  equivalent to ‘everything’.      The only limitation arises from the      words ‘in  Parliament’ which  means      during the  sitting  of  Parliament      and in  the course  of the business      of  Parliament.  We  are  concerned      only with  speeches in  Lok  Sabha.      Once it  was proved that Parliament      was sitting  and its  business  was      being  transacted,   anything  said      during the  course of that business      was immune  from proceeding  in any      court. This  immunity is  not  only      compete but  is as it should be. It      is of  the essence of parliamentary      system of  Government that people’s      representatives should  be free  to      express themselves  without fear of      legal consequences.  What they  say      is only  subject to  the discipline      of the  rules  of  Parliament,  the      good sense  of the  members and the      control  of   proceedings  by   the      Speaker. The  courts have no say in      the matter  and should  really have      none." [p. 615] These observations  in Tej  Kiran Jain  emphasise the object underlying  the  immunity  that  has  been  conferred  under Article 105(2),  namely, that  the people’s  representatives should be  free to  exercise their functions without fear of legal consequences. Borrowing the words Burger CJ. it can be said that  this immunity has been ‘"to protect the integrity of the  legislative process  by ensuring the independence of the  individual   legislators".  It   cannot  be   given   a construction which  could lead  to Article 105(2), a charter for freedom  of speech in Parliament, being regarded, as per the phrase  used by  Lord Salmon, a "charter for corruption"

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so to  elevate Members  of Parliament  as  "super  citizens, immune  from   criminal  responsibility".   (Burger  CJ.  in Brewster). It would indeed be ironic if a claim for immunity from  prosecution   founded  on   the  need  to  ensure  the independence of  Members of  Parliament in  exercising their right to  speak or  cast their  vote in Parliament, could be put  forward   by  a   Member  who  has  bartered  away  his independence by  agreeing to  speak or  vote in a particular manner in  lieu of  illegal gratification that has been paid or promised.  Bu claiming  the immunity  such a Member would only be  seeking  a  licence  to  indulge  in  such  corrupt conduct.      It is  no doubt true that a member who is found to have accepted bribe in connection with the business of Parliament can be punished by the House for contempt. But that is not a satisfactory solution.  In exercise  of its  power to punish for contempt  the House  of Commons  can convict a person to custody and  may also order expulsion or suspension from the service of  the House.  There is  no power to impose a fine. The power  of committal  cannot exceed  the duration  of the session and  the person,  if not  sooner discharged  by  the House,  is   immediately  released   from   confinement   on prorogation. [See  " may’s Parliamentary Practice, 21st Edn. pp. 103,  109 and  111]. The  House of  Parliament in  India cannot claim  a higher  power.  The  Salmon  Commission  has stated that  "whilst the  theoretical power  of the House to commit a  person into custody undoubtedly exists, nobody has been committed  to prison  for contempt  of Parliament for a hundred  years   or  son,  and  it  is  most  unlikely  that Parliament would use this power in modern conditions". [para 306[]. The  Salmon Commission  has also  expressed the  view that in  view of the special expertise that is necessary for this type  of inquiry  the Committee  of Privileges  do  not provide an  investigative machinery  comparable to that of a police investigation. [para 310]      The expression  ‘in respect  of’ has to be construed in this perspective.  The cases  cited by Shri Rao do show that this expression has been construed as having a wider meaning to convey  ‘some connection  or relation  in between the two subject matters  to which the words refer’. But as laid down by this  Court in The State of Madras v. M/s Swastik Tabacco Factory, Vendarayam  (supra) the expression has ‘received  a wide interpretation,  having regard  to the  object  of  the provisions  and   the  setting   in  which  the  said  words appeared’. The  expression ‘in respect of’ in Article 105(2) has, therefore,  to be  construed keeping in view the object of Article  105(2) and  the setting  in which the expression appears in that provision.      As  mentioned  earlier,  the  object  of  the  immunity conferred  under   Article  105(2)     is   to  ensure   the independence   of    the   individual    legislators.   Such independence is  necessary for  healthy functioning  of  the system   of   parliamentary   democracy   adopted   in   the Constitution. Parliamentary democracy is a part of the basic structure of  the Constitution.  An  interpretation  of  the provisions of  Article 105(2) which would enable a Member of Parliament to  claim immunity from prosecution in a criminal court for  an offence of bribery in connection with anything said by  him or  a vote  given by  him in  Parliament or any committee thereof  and thereby  place such Members above the law would  not only  be repugnant  to healthy functioning of Parliamentary democracy  but would also be subversive of the Rule of  Law which  is also  an essential  part of the basic structure of  the Constitution.  It is  settled law  that in interpreting the  constitutional provisions the court should

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adopt a  construction  which  strengthens  the  foundational features and  the basic structure of the Constitution. [See- Committee on Judicial Accountability v. Union of India, 1991 (4) SCC  699, 719].  The expression ‘in respect of’ precedes the words  ‘anything said  or any  vote  given’  in  Article 105(2). The words ‘anything said or any vote given’ can only mean speech  that has  already been  made or a vote that has already been  given. The immunity from liability, therefore, comes into  play only  if a speech has been made or vote has been given.  The immunity  would not  be available in a case where a  speech has  not been  made or  a vote  has not been given. When  there is  a prior agreement whereunder a Member of Parliament has received an illegal consideration in order to exercise  his right  to speak  or to  give  his  vote  in particular manner  on matter  coming  up  for  consideration before the  House, there  can be  two  possible  situations. There may  be  an  agreement  whereunder  a  Member  accepts illegal gratification  and agrees not to speak in Parliament or not  to give his vote in Parliament. The immunity granted under Article 105(2) would not be available to such a Member and he  would be  liable to  be prosecuted  on the charge of bribery in  a criminal court. What would b e the position if the agreement  is that  in lieu of the illegal gratification paid or  promised the Member would speak or give his vote in Parliament in  a particular  manner and  he speaks and gives his vote  in that manner ? As per the wide meaning suggested by Shri Rao for the expression ‘in respect of’, the immunity for prosecution  would be  available to  the Member  who has received illegal  gratification under  such an agreement for speaking or  giving his vote and who has spoken or given his vote in  Parliament as  per the  said agreement because such acceptance  of   illegal  gratification   has  a   nexus  or connection with  such speaking  or giving  of vote  by  that Member. If  the construction  placed  by  Shri  Rao  on  the expression ‘in  respect of’  is adopted,  a Member  would be liable to be prosecuted on a charge of bribery if he accepts bribe for  not speaking  or for  not giving  his vote  on  a matter under  consideration before  the House  but he  would enjoy immunity  from prosecution  for such  a charge  if  he accepts bribe  for speaking or giving his vote in Parliament in a  particular manner  and he  speaks or gives his vote in Parliament in  that manner. It is difficult to conceive that the framers  of the  Constitution intended  to make  such  a distinction in  the matter  of grant  of immunity  between a Member of  Parliament who  receives bribe  for  speaking  or giving his  vote in  Parliament in  a particular  manner and speaks or  gives his  vote in  that manner  and a  Member of Parliament who receives bribe for not speaking or not giving his vote  on a  particular matter coming up before the House and does  not speak or give his vote as per the denying such immunity to the latter. Such an anamolous situation would be avoided if  the words  ‘in respect of’ in Article 105(2) are construed to  mean ‘arising  our of’.  If the express in ‘in respect of’  is thus construed, the immunity conferred under Article 105(2)  would be  confined to  liability that arises out of or is attributable to something that has been said or to a  vote that  has been given by a Member in Parliament or any committee  thereof. The immunity would be available only if the  speech that  has been made or the vote that has been given is  an essential  and integral  part of  the cause  of action for the proceedings giving rise to the liability. The immunity would  not be  available to give protection against liability for  an act that precedes the making of the speech or giving  of vote  by a Member in Parliament even though it may have a connection with the speech made or the vote given

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by the Member if such an act gives rise to a liability which arise independently and does not depend on the making of the speech or  the giving  of vote  in Parliament by the Member. Such  an   independent  liability   cannot  be  regarded  as liability in  respect of  anything said or vote given by the Member in  Parliament. The  liability for which immunity can be claimed  under Article  105(2) is  the liability that has arisen as  a consequence of the speech that has been made or the vote that has been given in Parliament.      An indication  about the liability with regard to which immunity is  granted by  Article  105(2)  is  given  in  the Legislative Privileges Case wherein in the context of clause (2) of  Article 194,  which confers immunity similar to that conferred  by   Article  105(2)  on  Members  of  the  State Legislatures, it has been said :-      "Having conferred freedom of speech      on  the   legislators,  clause  (2)      emphasises the  fact that  the said      freedom   is    intended   to   the      abosolute and  unfettered.  Similar      freedom  is   guaranteed   to   the      legislators in respect of the votes      they may  given in  the Legislature      or any  committee thereof. In other      words,   even   if   a   legislator      exercises his  right of  freedom of      speech  in   violation,   say,   of      Article 21,  he would not be liable      for  any   action  in   any  court.      Similarly, if the legislator by his      speech or  vote, is alleged to have      violated  any  of  the  fundamental      rights guaranteed  by Part  III  of      the Constitution in the Legislative      Assembly,   he    would   not    be      answerable     for     the     said      contravention in  any court. If the      impugned speech amounts to libel or      becomes  actionable  or  indictable      under any  other provision  of  the      law, immunity has been conferred on      him from any action in any court by      this clause." [p. 441]      With regard to liability arising from giving of vote in the House  an illustration  is furnished  by the decision of the US Supreme Court in Kilbourn v. Thompson, 26. L.Ed. 377. In the case one Hallet Kilbourn was found guilty of contempt of the  House of  Representatives  and  was  ordered  to  be detained in custody under a resolution passed by that House. He brought  an action  in trespass  for  false  imprisonment against the  members of the House who had voted in favour of the resolution.  The action  was held to be not maintainable against the members in view of the immunity conferred by the Speech or Debate Clause in the US Constitution.      The  construction  placed  by  on  the  expression  ‘in respect of’  in Article  105(2) raises the question : Is the liability to  be prosecuted arising from acceptance of bribe by a  Member of  Parliament for  the purpose  of speaking or giving his  vote in  Parliament in  a particular manner on a matter  pending   considerations   before   the   House   an independent liability  which cannot  be said to arise out of anything said  or any vote given by the Member in Parliament ? In  our opinion,  this question  must be  answered in  the affirmative. The  offence of bribery is made out against the receiver if takes or agrees to take money for promise to act

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in  a   certain  way.  The  offence  is  complete  with  the acceptance of  the money  or on t he agreement to accept the money  being   concluded  and   is  not   dependent  on  the performance of  the illegal  promise by  the  receiver.  The receiver of  the money will be treated to have committed the offence even  when he  defaults in  the illegal bargain. For proving the  offence of  bribery all  that is required to be established is  that the  offender has received or agreed to receive money  for a  promise to act in a certain way and it is not  necessary to  go further  and prove that he actually acted in that way.      The offence  of criminal conspiracy      is defined in Section 120A in these      terms :-      "120-A.  Definition   of   criminal      conspiracy.-  When   tow  or   more      persons agree to do, or cause to be      done,-      (1) an illegal act, or      (2) an  act which is not illegal by      illegal mean,  such an agreement is      designated a criminal conspiracy :      Provided that  no agreement  except      an agreement  to commit  an offence      shall   amount    to   a   criminal      conspiracy unless  some act besides      the agreement  is done  by  one  or      more parties  to such  agreement in      pursuance thereof.      Explanation.-  It   is   immaterial      whether  the  illegal  act  is  the      ultimate object  of such agreement,      or is  merely  incidental  to  that      object." The offence is made out when two or more persons agree to do or cause  to be  done an  illegal act  or when  two or  more persons agree  to do or cause to be done by illegal means an act which  is not illegal. In view of the proviso to Section 120A IPC  an agreement  to commit an offence shall by itself amount to  criminal conspiracy  and it is not necessary that some act besides the agreement should be done by one or more parties to  such agreement  in pursuance thereof. This means that the  offence of  criminal conspiracy would be committed if two or more persons enter into an agreement to commit the offence of bribery and it is immaterial whether in pursuance of that  agreement that  act that  was agreed  to be done in lieu of payment of money was done or not.      The  criminal   liability  incurred   by  a  Member  of Parliament who has accepted bribe for speaking or giving his vote in  Parliament  in  a  particular  manner  thus  arises independently of the making of the speech or giving of  vote by the  Member and  the said liability cannot, therefore, be regarded as  a liability ‘in respect of anything said or any vote given’ in Parliament. We are, therefore, of the opinion that the  protection granted  under Article 105(2) cannot be invoked by  any of  the appellants  to claim  immunity  from prosecution on  the substantive  charge in  respect  of  the offences punishable under Section 7, Section 13(2) read with Section 13(1)(d)  and Section  12 of the 1988 Act as well as the charge  of criminal  conspiracy under  Section 120B  IPC read with  Section 7  and Section  13(2) read  with  Section 13(1)(d) of the 1988 Act.      Shri P.P.  Rao has  also  invoked  the  privileges  and immunities available  to Members  of Parliament under clause (3) of  Article 105. It has been urged that since no law has

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been made  by Parliament defining the powers, privileges and immunities  of   each  House   of  Parliament,  the  powers, privileges and  immunities enjoyed  by Members of Parliament in India are the same as those enjoyed by the Members of the House of  Commons of the Parliament of the United Kingdom at the commencement of the Constitution on January 26, 1950. In order to show that on January 26, 1950 a Member of the House of Commons  in the  United Kingdom  enjoyed an immunity from prosecution for  bribery in  connection with the exercise of his functions  as such  Member, Shri  Rao  has  invited  our attention to  the following statement in May’s Parliamentary Practice :-      "The acceptance  by any  Member  of      either  House   of   a   bribe   to      influence him  in  his  conduct  as      such  Member   or   of   any   fee,      compensation    or     reward    in      connection with  the promotion  of,      or   opposition    to   any   bill,      resolution,   matter    of    thing      submitted   or   intended   to   be      submitted  to   the  House  or  any      committee thereof  is a  breach  of      privilege." [18th Edn.p. 138] It has  been submitted that since acceptance of a bribe by a Member  of  House  of  Commons  was  treated  as  breach  of privilege and  was not triable as an offence in any criminal court in the United Kingdom, the same privilege and immunity is available to a Member of Parliament in India by virtue of the second  part of  clause (3)  of Article 105. It has been further contended  that in  a case  where the  conduct which constitutes the  breach of  privilege is  also an offence at law, it  is for  the House  to decide whether the punishment which the  House is  empowered to inflict is not adequate to the offence  and it is necessary that the offender should be prosecuted in  a criminal  court an  d reliance is placed on the following passage in May’s Parliamentary Practice :-      "In case  of  breach  of  privilege      which are  also  offences  at  law,      where  the   punishment  which  the      House has  power to  inflict  would      not be adequate to the offences, or      where for any other cause the House      has  though  a  proceeding  at  law      necessary, either  as a  substitute      for, or  in addition  to,  its  own      proceeding,  the  Attorney  General      has been  directed to prosecute the      offender." [18th Edn. p.127] In the  Legislative Privileges Case, while construing clause (3) of  Article 194,  which was  in the same terms as clause (3) of Article 105, this Court has said :-      "This  clause   requires  that  the      powers, privileges  and  immunities      which are claimed by the House must      be shown  to ave  subsisted at  the      commencement of  the  Constitution,      i.e., on  January 26,  1950. It  is      well known  that  out  of  a  large      number  of  privileges  and  powers      which the  House of Commons claimed      during the  days  of  its    bitter      struggle for recognition, some were      given up  in course  of  time,  and      some   virtually   faded   out   by

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    desuetude; and  so, in  every  case      where a  power is  claimed,  it  is      necessary to enquire whether it was      an existing  power at  the relevant      time. It  must also appear that the      said power  was not only claimed by      the House  of  Commons,  but  if  a      particular power  which is  claimed      by the  House was  claimed  by  the      House  of   Commons  but   was  not      recognised by  the English  courts,      it would still be upheld that under      the latter  part of clause (3) only      on the  ground that  it was in fact      claimed by the House of Commons. In      other words,  the inquiry  which is      prescribed by  this clause  is : is      the power  in  questions  shown  or      proved to  have  subsisted  in  the      House of  Commons at  the  relevant      time."  [pp.  442,  443]  [emphasis      supplied] The learned  Attorney General  has submitted  that till  the decision in  R.V. Currie  & Ors. the position in England was that acceptance  of bribe  by a Member of Parliament was not being treated  as an  offence at  common law,  the  question whether a  Member of  Parliament  enjoys  an  immunity  from prosecution in a criminal court on a charge of bribery never came up  before the English courts and, therefore, it cannot be said that on January 26, 1950 the members of the House of Commons in  t he  United Kingdom  enjoyed a privilege, which was recognised by the English courts, that they could not be prosecuted on  a charge  of bribery  in a criminal court and that such  a privilege  cannot,  therefore,  be  claimed  by members of  Parliament in  India under clause (3) of Article 105. The learned Attorney General has placed reliance on the following observations of Stephen J. in Bradiaugh V. Gossett (1884) 12 QBD 271 :      "I know  of no  authority  for  the      proposition that  an ordinary crime      committed in  the House  of Commons      would   be   withdrawn   from   the      ordinary   course    of    criminal      justice."      The learned  Attorney General  has also placed reliance on the  following statement  of law  in Halsbury’s  Laws  of England, Vol  AA(1/), Para  37 at  page 40,  wherein  it  is stated :-      "37. Members  of Parliament. Except      in relation  to  anything  said  in      debate, a  member of  the House  of      Lords or of the House of Commons is      subject to  the ordinary  course of      criminal justice, the privileges of      Parliament do not apply to criminal      matters." In Footnote (1) to the said para it is stated that :-      "Although  members   are   probably      subject to  the jurisdiction of the      courts in  respect of other conduct      in Parliament,  they cannot be made      criminally   responsible   in   the      courts for  what is said by them in      Parliament while it is sitting; see      the Privileges  of  Parliament  Act

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    1512 (as amended)." We find  considerable force  in the  aforesaid submission of the learned  Attorney General.  Since offering of bribe to a Member of  Parliament and acceptance of bribe by him had not been treated  as an  offence at  common law by the courts in England, when  t he  Constitution was  adopted in  1950, the fact that  such conduct  was being  treated as  a breach  of privilege by  the House  of Commons  in England at that time would not  necessarily mean  that the courts would have been precluded from  trying the offence of bribery committed by a Member of Parliament if it were to be treated as an offence. In Australia  and Canada  where bribery  of a legislator was treated as  an offence  at common  law the  courts in White, Boston and  Bunting has  held that  the legislator  could be prosecuted in  the criminal  court for  the said offence. It cannot, therefore, be said that since acceptance of bribe by a Member  of House  of Commons  was treated  as a  breach of privilege by  the House of Commons and action could be taken by the House for contempt against the Member, the Members of the House  of Commons,  on January 26. 1950, were enjoying a privilege that in respect of conduct involving acceptance of bribe in  connection with  the business  of Parliament, they could only  be punished for breach of privilege of the House and they  could not  be prosecuted in a court of law. Clause (3) of Article 105 of the Constitution cannot, therefore, be invoked by the appellants to claim immunity from prosecution in respect of the charge levelled against them.      Before we conclude on this aspect relating to the claim for immunity  from  prosecution,  we  would  deal  with  the contention urged  by Shri  D.D. Thakur  wherein he  has laid emphasis  on   the     practical  political  realities.  The submission of  Shri Thakur  is that during the course of the election   campaign    a   candidate    receives   financial contributions and  also makes promises to the electorate and that if  the immunity  under Article 105(2) is not available he would  be liable to be prosecuted if, after being elected as member  of Parliament,  he speaks  or gives  his vote  in Parliament in  fulfilment of  those  promises.  The  learned counsel has  placed reliance  on the  dissenting judgment of White J.  in Brewster wherein he has expressed the view that permitting the  executive to  initiate the  prosecution of a member of  Congress for  the specific  crime of  bribery  is subject to  serious potential  abuse that might endanger the independence of  the legislature.  Burger CJ.  has, however, pointed out that there was no basis for such an apprehension inasmuch as  no case was cited in which the bribery statutes which have  been applicable  to members of Congress for over 100 years  have been  abused by  the Executive  Branch.  The learned Chief Justice has stated :-      "We do  not discount  entirely  the      possibility  that  an  abuse  might      occur, but  this possibility, which      we   consider   remote,   must   be      balanced  against   the   potential      danger  flowing   from  either  the      absence  of   a   bribery   statute      violates the  Constitution.  As  we      noted at the outset, the purpose of      the Speech  or Debate  Clause is to      protect the  individual legislator,      not simply for his own sake, but to      preserve   the   independence   and      thereby  the   integrity   of   the      legislative process.  But financial      abuses, by  way of  bribes, perhaps

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    even  more  than  Executive  power,      would gravely undermine legislative      integrity and  defeat the  right of      the      public      to      honest      representation.    Depriving    the      Executive   of    the   power    to      investigate and  prosecute and  the      Judiciary of  the power  to  punish      bribery of  Members of  Congress is      unlikely  to   enhance  legislative      independence." [p. 525] In the  earlier part  of the judgment we have found that for the past  more than  100 years  legislators in Australia and Canada are liable to be prosecuted for bribery in connection with their legislative activities and, with the exception of the United Kingdom, most of the commonwealth countries treat corruption and  bribery  by  members  of  legislature  as  a criminal offence.  In the  United Kingdom  also there  is  a move to  change the  law in this regard. There appears to be no reason why legislators in India should be beyond the pale of laws  governing bribery  and corruption  when  all  other public functionaries  are subject  to  such  laws.  We  are, therefore, unable   to  uphold the  above contention of Shri Thakur.      On a  consideration of  the submissions  urged  by  the learned counsel  we arrive  at the  conclusion that  on  the basis of  provisions contained  in clauses  (2) and  (3)  of Article 105,  the  appellants  cannot  claim  immunity  from prosecution on  the charges  that have been levelled against them. Whether a ‘Public Servant’      We may  now come  to the  question whether  a Member of Parliament is  a public servant for the purposes of the 1988 Act. Prior tot he enactment of the 1988 Act the law relating to prevention  of corruption  was governed by the Prevention of Corruption  Act, 1947  [hereinafter referred  to as  ‘the 1947 Act’].  In Section  2 of  the 1947  Act it was provided that for the purposes of the said Act "public servant" means a public  servant as  defined in  Section 21 IPC. Section 21 IPC provided as follows :      "21. "Public  Servant".- The  words      "public servant"  denote  a  person      falling   under    any    of    the      discriptions hereinafter following,      namely:      First.   -    [Repealed   by    the      Adaptation of Laws Order, 1950.]      Second.- Every Commissioned Officer      in  the   Military,  Naval  or  Air      Forces of India;      Third.- Every  Judge including  any      person   empowered    by   law   to      discharge, whether by himself or as      a member  of any  body of  persons,      any adjudicatory functions;      Fourth.- Every  officer of  a Court      of Justice (including a liquidator,      receiver  of   commissioner)  whose      duty it  is, as  such  officer,  to      investigate or report on any matter      of  law  or  fact,  or  to  make  ,      authenticate, or keep any document,      or to take charge or dispose of any      property,   or   to   execute   any      judicial process,  or to administer

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    any oath,  or to  interpret, or  to      preserve order  in the  Court,  and      every person  specially  authorised      by a  Court of  Justice to  perform      any of such duties;      Fifth.- Every jurymen, assessor, or      member of  a panchayat  assisting a      Court of Justice or public servant;      Sixth.- Every  arbitrator or  other      person to  whom any cause or matter      has been  referred for  decision or      report by  any Court of Justice, or      by  any   other  competent   public      authority;      Seventh.- Every  person  who  holds      any office by virtue of which he is      empowered  to  place  or  keep  any      person in confinement;      Eighth.-  Every   officer  of   the      Government whose  duty  it  is,  as      such officer,  to prevent offences,      to give information of offences, to      bring offenders  to justice,  or to      protect the  public health,  safety      or convenience;      Ninth.- Every officer whose duty it      is,  as   such  officer,  to  take,      receive,   keep   or   expend   any      property   on    behalf   of    the      Government, or  to make any survey,      assessment or contract on behalf of      the Government,  or to  execute any      revenue-process or  to investigate,      or  to   report,  on   any   matter      affecting the  pecuniary  interests      of  the  Government,  or  to  make,      authenticate or  keep any  document      relating to the pecuniary interests      of the  Government, or  to  prevent      the infraction  of any  law for the      protection   of    the    pecuniary      interests of the Government.      Tenth.- Every officer whose duty it      is,  as   such  officer,  to  take,      receive,   keep   or   expend   any      property, to  make  any  survey  or      assessment or  to levy  any rate or      tax for  any secular common purpose      of any  village, town  or district,      or to  make, atuhenticate  or  keep      any document  for the  ascertaining      of the  rights of the people of any      village, town or district;      Eleventh.- Every  person who  holds      any office by virtue of which he is      empowered  to   prepare,   publish,      maintain  or  revise  an  electoral      roll or  to conduct  an election or      part of an election;      Twelfth.- Every person-      (a)  In the  service or  pay of the           Government or  remunerated  by           fees  or  commission  for  the           performance of any public duty           by the Government;

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    (b)  in the  service or  pay  of  a           local authority, a corporation           established  by   or  under  a           Central, Provincial  or  State           Act or a Government company as           defined in  Section 617 of the           Companies  Act,   1956  (1  of           1956)." In R.S.Nayak  v. A.R.  Antulay. 1984 (2) SCR 495, this Court construed the  provisions of  Section 21  IPC  in  order  to determine whether a Member of the Legislative Assembly could be held  to be  a public servant for the purpose of the 1947 Act. The  said question  was  considered  in  the  light  of clauses (3),  (7) and  (12)(a) of  Section 21  IPC. It   was pointed out that Members of Parliament in the United Kingdom are not  covered by  the Prevention of Corruption Act, 1906, the Prevention of Corruption Act, 1916 and the Public Bodies Corrupt Practices  Act, 1889. The Court has also referred to the Bill  called the  Legislative Bodies  Corrupt  Practices Act,  1925   introduced  in  1925  to  give  effect  to  the recommendations of  the Reforms  Enquiry Committee (known as Mudiman Committee) which sought to fill in the lacuna in the existing law  and  to  provide  for  punishment  of  corrupt practices by  or relating  to members  of Legislative Bodies constituted under the Government of India Act, 1919, and has taken note  that the  said Bill  was snot  enacted into law. The  Court   has    also  referred  to  the  Report  of  the Committee, known  as the  Santhanam Committee,  appointed by the Government  of India  to  suggest  changes  which  would ensure speedy  trial of  cases of  bribery,  corruption  and criminal  misconduct   and  make   the  law  otherwise  more effective, which  led  to  the    amendments  introduced  in Section 21  IPC by the Anti Corruption Laws (Amendment) Act, 1964 as  well as the Statement made by Shri Hathi, Minister- in-charge, while  piloting in  the Lok  Sabha the Bill which was enacted  as the  Anti Corruption  laws (Amendment)  Act, 1964. The  Court held  that  a  Member  of  the  Legislative Assembly was  not comprehended  in the definition of ‘public servant’  in   Section  21   IPC  and  that  the  amendments introduced in  Section 21  IPC by  the Amendment Act of 1964 did not  bring about  any change.  While dealing with clause (12)(a) of  Section 21  IPC, as amended by the Amendment Act of 1964,  the Court observed that a person would be a public servant under  clause (12)(a) if (i) he is in the service of the Government,  or (ii) he is in the pay of the Government, or (iii)  he is  remunerated by  fees or  commission for the performance of  any public  duty by  the Government.  It was held that  even though  a  Member  of  Legislative  Assembly receives his  salary and  allowances in his capacity as such Member, he  is not  a person  in the  pay of  the Government inasmuch  as   the  expression   ‘Government’  connotes  the executive and not eh legislature and a Member of Legislative Assembly is  certainly not  in the  pay of the executive. It was also  held that a Member of Legislative Assembly is also not remunerated  for performance  of any  public duty by the Government because he is not remunerated by fees paid by the Government, i.e.  the Executive.  At the  same  time,  while dealing with  the contention  that a  Member of  Legislative Assembly is not performing any public duty it was observed :      "It is  not  necessary  to  examine      this aspect  because it  would   be      rather  difficult   to  accept   an      unduly vide  submission that M.L.A.      is not  performing any public duty.      However, it  is unquestionable that

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    he is  not  performing  any  public      duty   either   directed   by   the      Government or  for the  Government.      He no  doubt performs public duties      cast on him by the Constitution and      his electorate.  He thus discharges      constitutional functions  for which      he is  remunerated by  fees under t      he  Constitution  and  not  by  the      Executive" [p. 548] The Court  also considered  the question whether a Member of the Legislative  Assembly is a public servant with reference to clauses  (3) and  (7) of  Section 21  IPC and held that a member of  the Legislative  Assembly did not fall within the ambit of the said clauses.      In the  1988 Act  the expression  ‘public servant’  has been defined in Section 2(c) which reas as follows :-      "2(c) "public servant" means -      (i)  any person in the service or           pay of the Government or           remunerated by the Government           by fees or commission for the           performance of any public           duty;      (ii) any  person int  he service or           pay of a local authority;      (iii)andy person  in the service or           pay    of     a    corporation           established  by   or  under  a           Central, Provincial  or  State           Act, or an authority or a body           owned or  controlled or  aided           by   the   Government   or   a           Government company  as defined           in   section    617   of   the           Companies  Act,   1956  (1  of           1956);      iv)  any   Judge,   including   any           person  empowered  by  law  to           discharge, whether  by himself           or as  a member of any body of           persons,   any    adjudicatory           functions;      (v)  any  person   authorise  by  a           court of  justice  ot  perform           any duty,  in connection  with           the administration of justice,           including    a     liquidator,           receiver    of    commissioner           appointed by such court;      (vi) any arbitrator or other person           to whom  any cause  or  matter           has been referred for decision           or  report   by  a   ocurt  of           justice  or   by  a  competent           public authority;      (vii)  any   person  who  holds  an           office by  virtue of  which he           is   empowered   to   prepare,           publish, maintain  or rrevised           an  electoral   roll   or   to           conduct an election or part of           an election;      (viii)any  person   who  holds   an           office by  virtue of  which he

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         is authorised  or requried  to           perform any public duty;      (ix)  any   person   who   is   the           president, secretary  or other           office-bearer of  a registered           co-operative  society  engaged           in   agriculture,    industry,           trade or banking, receiving or           having received  any financial           aid    from     the    Central           Government    or    a    State           Government   or    from    any           corporation established  by or           under a Central, Provincial or           State Act, or any authority or           body owned  or  controlled  or           aided by  the Government  or a           Government company  as defined           in section 617 of the Compnies           Act, 1956 (1 of 1956);      (x)  any person  who is a chairman,           member  or   emplyee  of   any           Service Commission  or  Board,           by whatever  name called, or a           member   of    any   selection           commission appointed  by  such           Commission or  Board  for  the           conduct ofr any examination or           amking any selection on behalf           of such Commission or Board;      (xi) any  person who  is Vice-Chair           man or member of any governing           body,    professor     reader,           lecturer or  any other teacher           or   employee,   by   whatever           designatin  called,   of   any           Unversity and any person whose           services have been avawiled of           by a  University or  any other           public authority in connection           with  holding   or  conducting           examinations;      (xii) any  person who is an office-           bearer or  an  emplyee  of  an           educational,       scientific,           social,  cultural   or   other           institution,    in    whatever           manner established,  receiving           or   having    received    any           financial assistance  from the           Central  Government   or   any           State Government,  or local or           other public authority.           Explanation 1.- Person falling      under any  of the above sub-clauses      are   public    sevants,    whether      appointed by the Government or not.           Explanation 2.-  Wherever  the      words "public  servant" occur, they      shall be  understood of ever person      who is  in actual possession of the      situation  of   a  public  servant,      whatever legal  defeat there may be      in   his   right   to   hold   that      situation."

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The expression  "public duty"  is defined in Section 2(b) in these terms :-      "2(b) "public duty" means a duty in      the discharge  of which  the State,      the  public  or  the  community  at      large has an interest;           Explanation.- In  this  clause      "State"  includes   a   corporation      established by  or under a Central,      Provincial  or  State  Act,  or  an      authority  or   a  body   owned  or      controlled   or    aided   by   the      Government company  as  defined  in      section 617  of the  Companies Act,      1956 (1 of 1956);"      The clause  relevant for  our purpose  is clause (viii) whereunder "any  person who  holds an  office by  virtue  of which he  is authorised  or required  to perform  any public duty" is  to be  treated as  a public servant under the 1988 Act. The  said clause  postulates that  the person  must (i) hold an  office and  (ii) by  virtue of that office (iii) he must be  authorised or  requried to  perform (iv)  a  public duty.      On behalf  of the  appellants it has been urged that  a Member of Parliament does not fall within the amibit of this clause because (1) he does not hold an office; and (2) he is not authorised  or requried  to perform  any public  duty by virtue of his office.      We will  first examine the question whether a Member of Parliament holds  an office.  The word  ‘office’ is normally understood to  mean "a  position to which certain duties are attached, esp.  a place of trust, authority or service under constituted  authority".   [See  :  Oxford  Shorter  English Dicikonary, 3rd Edn. p. 1362]. In McMillan v. Guest, 1942 AC 561, Lord Wright has said :-      "The word ‘office’ is of indefinite      content. It  various meanings cover      four columns  of  the  New  English      Dictionary, but  I take as the most      relevant for  pusposes of this case      the  following  :  "A  position  or      place to  which certain  duties are      "attached, especially one of a more      or less public character." In the same case Lord Atkin gave the following meaning :-      "an office  or employment which was      subsisting, permanent,  substantive      position, which  had  an  existence      independent  of   the  person   who      filled it,  which went  on and  was      filled in  succession by successive      holders."      In Stateman  (Private)Ltd. v. H.R. Deb & Ors., 1968 (3) SCR 614, and Mahadeo v. Shantibhai & Ors., 1969 (2) SCR 422, this   Court has  adopted the  meaning given  by Lord Wright when it said :-      "An office  means on  more  than  a      position to  which  certain  duties      are attached."      In Kanta  Kathuria v.  Manakchand Surana,  1970 (2) SCR 835, Sikri  J, (as  the  learned  Chief  Justice  then  was) speaking for  the majority,  while construing  the  words  " holds any  office of  profit" in  Articel 19(1)(g), has said that "there  must be an office which exists independently of the holder  of the office". It was observed that there is no

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essential difference  betweent he  definitions given by Lord Wright and Lord Atkin.      In White  the Supreme Court of New South Wales has held that a member of the State Legislature holds an office. That view has  been affirmed  byt he  High Court  of Australia in Boston. Isaacs & Tich, JJ. said :      "A   membr    of   Parliament   is,      therefore, in the highest sense, as      servant of  the State;  his  duties      are  those   appertaning   to   the      position he fills, a position of no      transient or temporary existence, a      position  forming   a   recongnized      place   in    the    constitutional      machinery of government. Why, then,      does he  not hold  an "office"?  In      R.V. White it was held, as a matter      of  cours,   that  the  does.  That      decision  is   sound.  "Office"  is      defined in  the Oxford  Dictionary,      as including  :- "5.  A position or      place to  which certain  duties are      attached, esp,  one of  a  more  or      less public  character; a  position      of  turst,  authority,  or  service      under constituted  authority."  And      "Officer" is  defined (inter  alia)      as "2.  One  who  holds  an  ofice,      post, or place. (a) One who holds a      public,  civil,  or  ecclesiastical      office;      ...      a      person      authoritatively    appointed     or      elected to  exercise some  function      pertaining to public life." Clearly      amember of  Parliament is a "public      officer" in a very real sense , for      he has,  in the words of Willams J.      in Faulkner  V.  Upper  Boddingtion      Overseers, "duties to perform which      would   constitute   in   law   ian      office". [p. 402]      In Habibullah  Khan v.  State of  Orissa, 1993 Cr. L.J. 3604, the  Orissa Hihg  Court has  held that a Member of the Legislatvie Assembly  holds an  office and performs a public duty. The learned Judges have examined the matter keeping in view the  meaning given  to the  expression "office" by Lord Wright as  well as  by  Lord  Atkin  in  McMillan  v.  Guest [supra].  Taking   into  consideration   the  provisions  of Articles 168,  170, 172 and 173 of the Constitution relating to Legislative Assembly of the State, the learned Judge ahve held that  the Member of the Legislative Assembly if created by the  Constitution and that there is a distinction between the office and the holder of the office.      Shri P.P.  Rao has, however, pointed out that under the COnstitution a distinction has been made between an 1office’ and a 1seat’ and that while the expression ‘office’ has been used   int    he   COnstitution    inrelation   to   various constitutional authorities  such as President, [Articles 56, 57, 59  a nd  62] Vice-Presiden,  [Article 67]  Speaker  and Deputy Speaker of the Lok Sabha, [Article 93, 94, 95 and 96] Deputy Chairman  of  Rajya  Sabha,  [Articl  90]  Ministers, [Article 90] Judge of the Supreme COurt [Article 124], Judge of the  High Court  [Article 217] and the Attorney Genral of India [Article 76] but insofar as a Member of Parliament and a Member  of State  Legoslature is  concerned the expression

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used in  ‘seat’  and  not  ‘office’  which  shows  that  the COnstitution  does   not  contemplate   that  a   Member  of Parliament or a Member of State Legislature holds an Office. In this  context Shri  Rao  has  invited  our  attention  to Article 84, 99, and 101 where the expression ‘seat’ has been used in  respect of Members of Parliament and to Article 173 and 190  where the  word ‘seat’  has been used in respect of Members of State Legislatures.      The learned  Attorney General  has, on  the other hadn, invited our  attention to  Section 12,  154, and  155 of the Representation  fo   the  People   Act,  1951   wherein   th eexpression ‘term  of office’ has been used in relation to a Member of  the Council of State [Rajya Sabha] and to Section 156 and  157 wherein  the said  expression has  been used in relation to a Member of the Legislative Council of the State [Vidhan Parishad],  The learned  Attorney General  has  also invited our  attention  tot  he  provisons  of  The  Salary, Allowances and  Pension of  Memebrs, of Parliament Act, 1854 wherein the  expression ‘term  of  office’,  as  defined  in Section 2(e) coverin members of the Council of State as well as the  House of  the People,  has been  used in  Section  3 (salaries  and   daily  allowances)  Sectuon  4  (travelling allowances) Section  6(2) (free  transit by railway) Section 6-A  (2)   (free  transit  by  steamer)  and  Section  8A(1) (Pension).      It would thus appear that although in t he Constitution the word  ‘office’ has been used  in the provisions relating to Members  of Parliament  and members  of State Legislature but in  other   parliamentary enactment relating toe members of Parliament the word ‘office’ has been used. Having regard to the  provisions of the Contitution and the Representation fo the  People Act,  1951 as  well as the Salary, Allowances and Pension  fo Members  of Parliament  Act,  1954  and  the meaning that  has been  given to the expressiion ‘office’ in the decisions  of this  Court,  we  are  of  the  view  that Membership of  Parliament is an ‘office’ inasmuch as it is a position carrying  certain responsibilities  which are  of a public character  and it has an existence independent of the holder of  the office.  It must, therefore, be held that the Member of Parliament holds an ‘office’.      The next  question is whether a Member of Parliament is authorised or  required to perform any public duty by virtue of his  office. As  mentioned earlier, in R.S. Navak v. A.R. Antulay this  Court has  said that  though a  member of  the State Legislature  is not  performing any public duty either directed by  the Government  or for the Government but he no doubt performs public duties cast on him by the Constitution and by  his  electorate  and  he  discharges  constitutional obligations for  which he  is  remunerated  fees  under  the Constitution.      In the  1988 Act  the expression ‘publid duty’ has been defined in  Section 2(b)  to mean  " duty in the dischrge of which the State, the public or the community at large has an interest".      The Form of Oath or Affirmation which is required to be made by  a Member  of Parliament  (as  prescribed  in  Third Schedule to the Constitution) is in these terms :-      "I, A.B.,  haing been  elected  (or      nominated) a  member of the Council      of States  (or  the  House  of  the      People) do  swear in  the  name  of      God/ Solemnly  affirm that  I  will      bear ture  faith and  allegiance to      the Constitution of India as by law      established,  that  I  will  uphold

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    that sovereignty  and integrity  of      India and  that I  will  faithfully      discharge the  duty upon which I am      about to enter." The words  "faithfully discharge  the duty  uponwhich  I  am about to enter’ show that a Member of Parliament is required to discharge certain duties after he is sworn in as a Memebr of Parliament. Under the COnstitution the Union Executive is responsibel to  Parliament and  Members of Parliament act as watchdogs ont he functioning of the Council of Ministers. In adition, a Member of Parliament plays an importance role  in parliamentary   proceedings,    including    enactment    of legislation,  which   is  asovereign  function.  The  duties discharged by  him are  such in  which the State, the public and the  community at  large have  an interest  and the said duties are,  therefore, public duties. It can be said that a Member of  Parliament is  authorised  and  requried  by  the Constitution to perform these duties and the said duties are performed by him by virtue of his office.      In Horne  v. Barber,  (1920) 27 CLR      494 at  p. 500,  Isaacs J. has said      :-      "When a  man becomes  a  member  of      Parliament,  he   undertakes   high      public  duties.  Those  duties  are      inseparable from  the position : he      cannot retain the honour and divest      himself of  the duties.  One of the      duties  is   that  of  watching  on      behalf of the general community the      conduct  of   the   Executive,   of      criticizing it,  and if  necessary,      of calling  it to  account  in  the      constitutional way  by censure from      his place  in Parliament  - censure      which, if  sufficiently  supported,      means removal  from office. That is      the whowle  essence of  responsibel      Government,w hich  is the  Keystone      of our Political system, and is the      main consititutional  safeguard the      community possesses," [p. 402]      In Boston  while examining  the  nature  of  duties  of Member of  Parliament, Isaacs  & Rich,  JJ. have reitereated the abovequoted  observations   in Horne  v. Brber  and have said :-      "The fundamental  obligation  of  a      membr in relation to the Parliament      of which  he is  a constituent unit      still susbsists  as essentially  as      at any  period of our history. That      fundamental obligation which is the      key to  this case  is the  duty  to      serve and,  in serving, to act with      fidelity  an   d  with   a  single-      mindedness for  the welfare  of the      community." [p. 400]      "These duties are of a transcendent      nature  and  involve  the  greatest      responsinbility, for  they  include      the supreme  power of  moulding the      laws to meet the necessities of the      people,   and   the   function   of      vigilantly     controlling      and      faithfully  guarding   the   public

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    finances." [p. 401]      We are,  therefore,  of  the  view  that  a  Member  of Parliament holds  an office  and by virtue of such office he is required  or authorised to perform duties and such duties are in  the nature  of public duties. A Member of Parliament would, therefore, fall withint he ambit of sub-clause (viii) of clause (c) of Section 2 of the 1988 Act.      The learned  counsel for  the appellants have, however, urged that  while enacting  the 1988  Act Parliament did not intend to  include Member  of Parliament  and Members of the State Legislatures  within the ambit of the Act and that the expression "public  servant" as  defined in  Section 2(c) of the 1988  Act   should be so construed as to exclude Members of Parliament and Members of State Legislatures. The learned counsel ahve  placed strong reliance ont eh speeches of Shri P. Chaidambaram,  the then Minister of State in the Ministry of Personnel,  Public Grievances  and Pensions  and  in  the Ministry of  Home Affairs during the course of debate on the Prevention of Corruption Bill, 1987 in the Lok Sabha as well as int  he Rajya  Sabha. Reliance  has been  palced  on  the following excerpts  from the  speech of  the Minister in the Lok Sabha  on May  7, 1987  and in the Rajya Sabha on May 11 and August 11, 1987 :-      Lok Sabha           "A question  has  been  raised      what is the position of a Member of      Parliament  or   a  Member   of   a      Legislative Assembly  ? We have not      doen anything different or contrary      to the  law  as  it  stands  today.      Under the  law, as it stands today,      the  Supreme   Court  has  held  in      Antulay’s case that a Member of the      Legislative Assmbly is not a public      servant  within   the  meaning   of      Section  21  of  the  Indian  Penal      Code.           I personally  think that it is      very difficult  to say  when an MLA      or an  MP becomes a public servant.      I believe that when an MP functions      qua-MP perhaps  he is  not a public      servant and,  therefore, we are not      attempting a  definition which will      lead to difficulties. We think that      there could  b e situations when an      MP of  an MLA  does  centain  thing      which are  really not  part of  his      duties as  an MP  an MLA.  We think      that an  MP  or  an  MLA  could  in      certain   ciecumstances   hold   an      office where he Act. If an MP or an      MLA does certain acts not qua-MP or      qua-MLA,  but   as  an  indicidual,      abusing  his  position,  I  am  not      using the  word ‘Office’ I think he      will  be  covered  like  any  other      individual under  Section 8,  9 and      12. When  an MP  or an MLA holds an      office,  and   by  virtue  of  that      office he  has to discharge certain      public duties,  I think  he will be      covered under  Section 2 clause (b)      read with Section 2 Clause (c) Sub-      clause (viii).  I think  these  two

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    situations are  quite  adequate  to      take care of defeaulting Members of      Parliament and  defaulting  Members      of the Legislative Assemblies."      Rajya Sabha           "Now I  will reply to the best      of my  ability how  an MP or an MLA      comes  within  the  ambit  of  this      Bill. I have tried to explain it in      the Lok  Sabha and I will try to do      so here within my limits and to the      best of my capacity. But if you are      quoting my sppech, please quote the      entire paragraphs.  Don’t take  one      sentence and  then para  phrase, it      and give  ypur commentary  on  its.      Read the  whole  paragraph,  it  is      very clear.  I have said that an MP      or an  MLA will in my opinion, come      within the  scope of  this Bill  in      two situations. ...........           A  law   has  to  be  made  by      Parliament,  We  make  a  law  with      certain  intentions.   We   use   a      certain language.  In may  view and      in amy  best judgment  and  on  the      best advice tht I have, this is how      we think  anMP or  an MLA  will  be      covered. This  is all  that we  can      say while  we are  making a law. We      believe  that   our  interpretation      will be  accepted by the courts. If      you    find    fault    with    our      interpretation tell  use  where  we      should improve  the bill,  tell  us      how we should imporve the language.      A    law    is    a    matter    of      interpretation.   We   are   acting      according  to   the  legal   advice      availabel to us.           A question was asked about the      Member of Parliament and Members of      Legislative Assembly.  Madam, under      the law  decleared by  the  Supreme      Court, a  Member of Parliament or a      Member of  Legislative Assembly per      se is  not a  public  servant.  But      there can be a number of situations      where an MP or an MLA holds another      office and  discharges other duties      which will  being  him  under  this      Bill. If   he  holds another office      in a  cooperative  society,  if  he      holds another  office in  a  public      institution  or  if  he  discharges      certain  duties   which  will  come      under the  definition  of    public      duty  clearly,  then  he  would  be      within the  definition  of  ‘public      servant’ under this Bill. But these      are matters  in  which  you  cannot      make on a prior assumption. One has      to look into the facts of each case      and then the courts will decided on      the facts of that case.

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    It has been urged that these excerpts from the speeches of the  Minister who has moved the Bill for consideration in both the  Houses of  Parliament throws considerable light on the meaning of the expression ‘public servant’ as defined in Section 2(c)  of the 1988 Act and that provisions of Section 2(c)(viii) of  the 1988  Act should  be given a construction whihc is  in accord  with these  statements of the Minister. Relying upon the decisions of this Court in K.P. Verghese v. Income Tax  Officer, 1982  (1) SCR  629, R.S.  Nayak v. A.R. ANTULAY (supra);  State of  Orissa v.  Mahanadi Coal Fields, 1995 Supp.  (2) SCC  686; and  Marendra Kumar  Maheshwari v. Union of  India, 1989(3) SCR 43, Shri Rao has urged that the speech of  the mover  of the  Bill can  be looked  into  for construing the  provisions of  the enactment.  It  has  been pointed out  tht in  hte recent  decision in Pepper v. Hart, 1993 (1)  All ER  42, the  House of  Lorde has also departed from the  earlier position taken by the courts in England in this regard  and that it has been held that the statement of the Minister  who had  moved the  Bill in  Parliament can be taken into consideration for the purpose of interpreting the provisions of the enactment.      The view  vwhich prevailed  earlier with  the courts in England was  that references to Parliamentary material as an aid to  statutory construction  is not permissible. The said exclusionary rule  precluded the  court from looking even at reports made  by  Commissioners  on  which  legislation  was based. The  rigidity of  the said  rule was relaxed in later decisions  so   as  to   permit  reports  of  Commissioners, including Law  Commissioners, and  white papers to be looked at for  the purpose solel,y of ascertaining the mischief the statute is  intended to  cure but  not for  the  purpsoe  of discovering the  meaning of  the words used by Parliament to effect such  cure. Parliamentary  debates were, however, not looked at  as an  aid to construction. The rationale for the exculsion of  parliament debates  is contained in the speech of  Lord   Reld  in   Black-Clawson  International  Ltd.  v. Papierworke Waidhof-Aschaffenburg,  1975 AC 591. The learned Lord Reid has said :-      "We often  say that  we are looking      for the  intention  of  Parliament,      but that  is not quite accurate. We      are  seeking  the  meaning  of  the      words whihc Parliament used. We are      seeking not  what Parliament  meant      but the  true meaning  of what they      said."      "The questions  which give  rise to      debate are rerely those which later      have to  be decided  by the courts.      One might  take the  views  of  the      promoters   of   a   Bill   as   an      indication  of   the  intention  of      Parliament   but   any   view   the      promoters  may   have   had   about      questions which  later come  before      the court  will not often appear in      Hansard and  often those  questions      have  neve   occurred   to   t   he      promoters. At  best  we  might  get      material from  which a more or less      dubious inference moght be drawn as      to what  the promoters inmtended or      would have  intended  if  they  had      though about  the  matter,  and  it      would,  I   think,  gfenerally   be

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    dangerous to  attach weight to what      some other  members of either House      may have said" [pp. 613-615]      The decision  in Pepper  v. Hart  makes an  advance. In that case  Lord Browne-  Wilkisnon, who  delivered the  main judgment, has said :-      ".........In my  judgment, subject  to the questions of      the privileges  of the  House of  Commons, reference to      parliamentary material should be permitted as an aid to      the construction  of legislation  which is ambiguous or      obscure or  the literal  meaning of  which leads  to an      absurdity. Even  in such  cases references  in court to      parliamentary material  should only  be permitted where      such material  clearly discloses t he mischief aimed at      or the legislative intention lying behind the ambiguous      or obscure  words. In  the case  of statements  made in      Parliament, as at present advised I cannot foresee that      any statement  other than the statement of the minister      or other  promoter of  the Bill is likely to meet these      criteria." [p.64]      "........Given the  purposive approach  to construction      now adopted  byt eh  courts in  order to give effect to      the  true  intentions  of  the  legislature,  the  fine      distinctuions between  looking  for  the  mischief  and      looking for  the intention  in useing  words to provide      the remedy  are technicdal and inappropriate. Clear and      unambiguous statements  made by ministers in Parliament      are  as   much  the  background  to  the  enactment  of      legislation as white papers and parliamentary reports."      [p. 65]      In the  earlier decisions  this court  also adopted the rule  of   exclusion  followed   by  the   English   courts. Parliamentary debates on a Bull were held to be inadmissible for construction  of the  Act [See  : Aswini  Kumar Ghose v. Arabinda Bose.  1953 SCR  1 at p. 29]. But in later judgemnt this court  has referred to the speech of the Minister while introducting the  Bill in the Legislature for the purpose of ascertaining the  mischief sought  to  be  remedied  by  the legislation  and  the  object  and  purpose  for  which  the legislation is  enacted. In  K.P.  Verghese  v.  Income  Tax Officer, 1982 (1) SCR 629, Bhagwati,J. (as the learned Chief Justice then was)  has siad :      "Now it  is true  that the speeches      made  by   the   Members   of   the      Legislatures on  the florr  of  the      House when  a Bill  for enacting  a      statutory   provision    is   being      debated are  inadimissible for  the      purpose   of    interpreting    the      statutory provision  but he  speech      made  by  the  Mover  of  the  Bill      explaining  the   reason  for   the      introduction  of   the   Bill   can      certainly be  referred to  for  the      purpose   of    ascertaining    the      mischief sought  to  be remedied by      the legislation  and the object and      purpose for  which the  legislation      is enacted." [p. 645]      The otehr  decisions of this Court cited by Shri Rao do not lay  down any  different principle. On the other hand in Snajeev Coke  Manufacturing Co.  v. Bharat Coking Coal Ltd., 1983 (1) SCR 1000, this court has laid down :-      "No   one   may   speak   for   the      Parliament and  Parliament is never

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    before the  Court. After Parliament      has said  what it  intends to  say,      only the  Court may  say  what  the      Parliament meant to say. None else.      Once a  statute  leaves  Parliament      House,  the  Court’s  is  the  only      authentic  voice   which  may  echo      (interpret)  the  Parliament.  This      the court will do with reference to      the language  of  the  statute  and      other permissible aids." [p. 1029] It would  thus be  seen that  as per  the decisions  of this Courtt the statement of the  Minister who had moved the Bill in Parliament can be looked at to a scertain mischief sought to be remedied by the legislation and the object and purpose for which  the legislation  is enacted. The statement of the Minister who  had moved  the Bill in Parliament is not taken into account  for the  purpose of interpreting the provisons of the  enactment. The  decision in  Pepper v.  Hart permits reference to the statement of the minister or other promoter of the  Bill as  an aid to construction of legislation which is ambiguous  or obscure  or the  literal meaning  of  which leads to  an absurdity  provided the  statement relied  upon clearly discloses  the mischief  aimed at or the legislative intention lying  behind the  ambigous or  obscure words  and that such  a statement  of the  minister must  be clear  and unambiguous. This rule of contruction laid in Papper v. Hart has no  application int  he present  case because sub-clause (viii) of  Section 2(c) of the 1988 Act cannot be said to be ambiguous or  obscure nor  can it  be said  that the literal meaning of the said clause leads to any absurdity. Moreover, the excerpts from the statement of the Minister on which rellance has been placed byt eh learned counsel fo the appellants cannot  be regarded  as clear  and unambiguous on the questionw hether a Member of Parliament or the Member fo the State Legislature would fall within the ambit of ‘public servant’  under  the  1988  Act  because  according  to  the statements of  the Minister  a Member  of Parliament  and  a Memebr of  the State legislature would be a ‘public servant’ under Secction  2(c)(viii) of  the Act in certain stuations. The statemnt of the Minister does not clearly indicate those situations. The  provisions of the 1986 Act also do not give any indication  about the  situations in  whihc a  Member of Parliament or  a Member  of the  State Legislature  would be treated as  apublic servant  and the  situations in which he will not  be treated  as a  public servant. Shri Kapil Sibal has submitted  that what  the Minister  meant was  that if a Member of  Parliament or  a Member of the  State Legislature is given  some  other  assignment,  e.g.  memebership  of  a delegation, then  in connection  witht that  assignment  his position would  be that  of a  public servant under the 1988 Act. The  language used  in Section 2(c)(viii) does not lend support to such a limit4d onstruction of the said provision.      Having  regard  to  the  object  of  the  1988  Act  as indicated in  the Statement  of Objects and Reasons, nemely, to widen  the scope  of the  definition  of  hte  expression "public  servant".   which  is  sought  to  be  achieved  by itnroducing the  definition of "public duty" in Section 2(b) and the definition of ‘public servant’ in Section 2(c) which enlarges the  scipe of  the existing  definition  of  public servant contained  in Section  21 IPC,  we do  not find  any justification for  restricting the  scope of  the wide words used in sub-clause (viii) of Section 2(c) in the 1988 Act on the basis  of the statement of the Minister so as to exclude Members of Parliament a nd Members of State Legislatures. In

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our opinion  th eowrds  used in sub-clause (viii) of Section 2(c) are  clear and ambiguous they cannot be out down on the basis of  the statement  made by the Minister while piloting the Bill in Parliament.      Shri D.D. Thakur has invoked the doctrine of Promissory Estoppel and  ahs submitted  that in  view of  the statement made by  the Minister  whiel piloting the Bill in Parliament that  Members   of  Parliament  and  Members  of  the  State Legislatures do not fall withint he sambit of the definition of "public  servant" the  State is  estopped from  taking  a contrary satand  and to claim that a Member of Parliament is a public  servant under Section 2(c) of the Act. There is no legal basis  for this  contention. We are concerned with the provisions of a law made by Parliament. There is no estoppel against the statute.      Shri Thakur  has also  invoked the  rule  of  statutory construction that  the legislature does not intend to make a substantial alteration  in  law  beyond  what  it  wxplicity declares either in express words or by clear implication and that the general words of the Act are not to be so construed as to  alter the  previous policy  of the law. He has placed reliance on  the decision  in  M.K.  Ranganathan  &  Anr  v. Government of Madra & Ors., 1955(2) SCR  374.  The said rule can have  not application  int he apresent c ase because the 1988 Act  has replaced th 1947 Act. It has been enacted with the specific object o faltering the existing anti-corruption laws so  as to  make them  more effective  by widening their coverage and  by strengthening  the provisions  and also  to widen the scope of the definition of ‘public servant’.      Having  considered   the  submissions  of  the  learned counsel ont he meaning of the expression ‘public servant’ in contained Section 2(c) of the 1988 Act , wer are of the view that a  Member of  Parliament is  a public  servant for  the purpose of the 1988 Act. Requirement for Sanction for Prosecution      In order to show that members of Parliament are outside the purview  of  the  1988  Act,  the  learned  counsel  for appellants have referred to Section 19 of the 1988 Act which prescribes that  no  court  shall  take  congnizance  of  an offence punishable  under Section  7, 10,  11,  13,  and  15 alleged to  have been  committed by  a public servant except witht he  previous sanction  of the  authority specified  in clauses (a), (b) or (c) of sub-section (1) of Section 19. It is submitted  that none  of the  clauses (a),  (b) or (c) of sub-section (1)  of Section 19 is applicable in respect of a Member of  Parliament and that there is no authority who can grant sanction  for prosecution  of a  Member of  Parliament which means that a Member of Parliament does not fall within the purview of the 1988 Act. Reliance has been placed on the observations of Shetty J. and Verma J. (as the learned Chief Justice then was) in K. Veeraswami v. Union of India & Ors., 1991 (3)  SCR 189, and the decision of hte Orissa High COurt in Habibulla Khan.      The learned  Attorney Genral  has, on  the other  hand, urged  that  the  requriement  of  previous  sanction  under Section 19  of the 1988 Act only imposes a limitation on the power of  the court to take cognizance under Section 190 Cr. P.C. of the offences mentioned in sub-section (1) of Section 19 and  that if  a public  servant is not ocovered by any of the cluses  (a), (b)  and (c) of Section 19(1) and t here is no authority  who could  grant sanction for his prosecution, the limitation  imposed by  Section 19  on the  power of the court to  take cognizance  would not  be applicable  and  it would be  open to  the competent court ot take cognizance of the offences  mentioned in  Section 19(1) would insisting on

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the requriement  of sanction.  The submission is that merely because none  of the  clauses (a),  (b) and  (c) of  Section 19(1) is  applicable to a Member of Parliament, it cannot be said that  he is  outside the  purview of  the 1988 Act. The learned Attroney General has also urged, in the alternative, that in  view of he provisions contained in Articles 102 and 103 the President can be regarded as the authority competent to remove  a Member  of Parliamen  and, therefore,  the  can grant  the   sanction  for  his  prosecution  udner  Section 19(1)(c) and  it cannot  b e  said that  since there  is  no authority who  can grant  sanction  for  his  prosecution  a Member of Parliament is outside the purview of the 1988 Act. The learned  Attorney General has also submitted tht many of the appellants had ceased to be members of Parliament on the date of  filing of  the charge-sheet and that the offence of criminal conspiracy under Section 120B IPC read with Section 7 and  Section 13(2)  read with Section 13(1)(d) of thr 1988 Act as  well as  the ofence under Section 12 of the 1988 Act are not  among the  offences mentioned  in Section 19(1) and that no  sanction was requried with regard to these offences and that  sanction ws  requried only  in respect  of ofecnes under  Section  7,  and  Section  13(2)  reas  with  Section 13(1)(d) of thd 1988 Act as against A-4 and A-15 and that in view of  sub-section (3)  of  Section  19  the  omission  of sanction would nbot have any effect on the trial of the said accused persons. Section 19 of the 1988 Act provides as follows :- <sls>      "19. Provious  sanctiuon  necessary      for  prosecution.-   (1)  No  court      shall take cognizance of an offence      punishable under Section 7, 10, 11,      13 and  15  alleged  to  have  been      committed  by   a  public   sevant,      except with the previous sanction,-      a)   in the case of a person who is           employed  in  connection  with           the affairs  of the  Union and           is  not   removable  form  his           office save  by  or  with  the           sanction   of    the   Central           Governnemnt,      of      that           Governmnt;      b)   int he  case of aperson who is           emplyed in connection with the           affairs of  the a State and is           not emovable  from his  office           save by  or with  the sanction           of the  State  Government,  of           that Government;      c)    in  the  case  of  any  other           person,   of   the   authority           competent ot  remove him  from           his offcie.      2)   Where for any reason whatsover      any doubt  arises as to whether the      previous sanction as requried under      sub-section (1)  should be given by      the Central Government or the State      Government or  any other authority,      such sanction  shall  be  given  by      that Gvoernment  or authority which      would have been competent to remove      the public  servant from his office      at the  tiem when  the offence  was

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    alleged to have b een committed.      3)   Notwithstanding       anything      containedc in  the Code of Criminal      Procedure, 1973 (2 of 1974),-           (a)  no finding,  sentence  or                orde passed  by a special                Judge shall   be reversed                or altered  by a Court in                appela,  confirmation  or                revision on the ground of                the absence  of,  or  any                error,    omission     or                irregularity   in,    hte                sanction  requried  under                sub-section  (1),  unless                in the  opinion  of  that                court,   a   failure   of                justicd has  in fact been                occasioned thereby;           (b)  no court  shal  stay  the                proceedings  under   this                Act ont  he ground of any                error,         omissionor                irrgularily     in     th                esanction granted  by the                authority, unless  it  is                satisfied tht sich error,                omissionor irregularity h                as resulted  in a failure                of justice;           (c)  no court  shall stay  the                proceedings  under   this                Act on  any other  gorund                and   no    court   shall                exercise  the  powers  of                revision in  relation  to                any  interlocutory  order                passed  in  any  inquiry,                trial,  appeal  or  other                proceedings.      4) In determining under sub-section      (3) whether  the absence of, or any      error, omission or irregularity in,      such  sanction  has  occasioned  or      resulted in  a failure  of  justice      the court  shall have regard to the      fact  whether   the  objection  and      should  have  been  raised  at  any      earlier stage in the proceedings.      Explanation.- For  the ourposes  of      this section.-      (a)  error includes  competency  of           the   authority    to    grant           sanction;      (b)   a   sanction   required   for           prosecution includes reference           to any  requriement  that  the           prosecution shall  be  at  the           instance   of    a   specified           authority    or    with    the           sanctionj   or   a   specified           person or any requirement of a           similar nature."      The  provisions   as  regards   sanction  were  earlier contained in  Section 6 of the 1947 Act. Sub-section (1) and

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2) of  Section 19  substantially  reproduce  the  provisions contained in Section 6 of the 1947 Act. Clauses (a), (b) and (c) of  sub-section (1)  of Section 19 are in the same terms as clauses  (a), (b) and (c) of sub-section (1) of Section 6 of the  19478 Act.  Sub-section (3) and (4) of Section 19 of the 1988 Act were not contained in Section 6 of the 1947 Act and have  been inserted  for the first time in Section 19 of the 1988 Act.      In  Veeraswami   the  question  for  consideration  was whether a  Judge of the High Court falls within the ambit of the 1947  Act and  in support  of the contention that he was not covered  by the  said Act,  it was  submitted  that  for prosecution in  respect of  an offence  under the  1947  Act previous sanction  of an  authority competent  to remove the public servant  as provided  under Section 6 of the 1947 Act is imperative  and that  the power  to remove a Judge of the Superior Court  is  not  vested  in  any  single  individual authority but  is vested in the two Houses of Parliament and the President  under Article  124(4) of the Constitution and since there  is   no authority  competent to  grant sanction under Section  6 of  the 1947  Act a  Judge of  the Superior Court did not fall within the ambit of the provisions of the 1947 Act.  The said  contention was  rejected by  the  Court [Verma J.  dissenting]. Shetty  J., who  delivered the  main judgment on  behalf of  the  majority,  held  that  for  the purpose of  Section 6  of   the 1947  Act  a  Judge  of  the Superior Court  fell in  clause (c) of Section 6(1) and that the President  of India  is the authority competent to grant sanction for  his prosecution.  The learned  counsel for the appellants   have   placed   reliance   on   the   following observations in  the judgement  of  Shetty  J.  wherein  the learned Judge  h as construed the provisions of Section 6 of the 1947 Act :-      "Section 6  may  now  be  analysed.      Clause (1)  of Section  6(1) covers      public   servants    employed    in      connection with  the affairs of the      Union. The prescribed authority for      giving  prior   sanction  for  such      persons  would   be   the   Central      Government. Clause  (b) of  Section      6(1)  cover   public  servants   in      connection with  the affairs of the      State. The  competent authority  to      give prior sanction for prosecution      of such  persons would be the State      Government.  Clause   (a)  and  (b)      would  thus   cover  the  cases  of      public servants who are employed in      connection with  the affairs of the      Union  or   State   and   are   not      removable from their office save by      or with the sanction of the Central      Government or the State Government.      That is  not the  end. The  section      goes further in clause (c) to cover      the remaining  categories of public      servants. Clause (c) states that in      the case  of any  other person  the      sanction would  be of the authority      competent to  remove him  from  his      office.  Section   6  is  thus  all      embracing bringing  within its fold      all  the     categories  of  public      servants as  defined under  Section

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    21 of the IPC." [p. 238]      "The provisions  of clauses (a) and      (b) of  Section  6(1)  of  the  Act      covers certain categories of public      servants and  the  ‘other  ’  which      means  remaining   categories   are      brought within  the scope of clause      (c)." [p. 240] It has  been pointed  out that  Verma J.,  in his dissenting judgment, has also taken the same view when he said :-      "Clauses (a),  (b) and  (c) in sub-      section   (1)    of    Section    6      exhaustively   provide    for   the      competent   authority    to   grant      sanction for prosecution in case of      all  the  public  servants  falling      within  the  purview  of  the  Act.      Admittedly, such  previous sanction      is a condition precedent for taking      cognizance    for     an    offence      punishable  under  the  Act;  of  a      public servant  who  is  prosecuted      during  his   continuance  in   the      office. It follows  that the public      servant falling  within the purview      of the  Act  must  invariably  fall      within one  of the three clauses in      sub-section (1)  of Section  6.  It      follows  that   the  holder  of  an      office,  even   though  a   ‘public      servant’    according     to    the      definition in the Act, who does not      fall within   any  of  the  clauses      (a), (b)  or (c) of sub-section (1)      of Section  6 must  be held  to  be      outside  the  purview  of  the  Act      since this  special  enactment  was      not enacted  to cover that category      of  public servants in spite of the      wide definition of ‘public servant’      in the Act. This is the only manner      in which  these provisions  of  the      Act can  be  harmonised  and  given      full effect." [pp. 285, 286]      The said  decision  in  Veeraswami  was  given  in  the context of  the definition  of ‘public servant’ as contained in Section  21 IPC.  The various  clauses in  Section 21 IPC refer to  persons who  can be  removed from  the office  and keeping in  view the  criterion of  removability from office this Court  in Veeraswami  has said that clauses (a) (b) and (c) of  sub-section (1)  of Section  6 of the 1947 Act cover all the  categories of  public servants mentioned in Section 21 IPC.  In the 1988 Act the concept of ‘public servant’ has been  enlarged.   A  separate   provision   containing   the definition  of  ‘public  servant’  has  been  introduced  in Section 21  IPC and  that contained  in Section  2(c) of the 1988 Act  would show  that Section  21 IPC  did not  indlude persons falling under sub-clauses (ix,(x), (xi) and (xii) of Section 2(c).  Sub-clauses (viii)  of Section  2(c) is  also wider in amplitude than clause 12(a) of Section 21 IPC.      In Veeraswami  while considering  whether Parliament is the authority  which could grant sanction for prosecution of a Judge  of the  Supreme Court since under Article 124(4) of the Constitution,  the address  must be passed by each House of Parliament, Shetty J. has said :-

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    "The  grant  of  sanction  requires      consideration of material collected      by  the  investigative  agency  and      Parliament cannot properly consider      the meterial.  Parliament is wholly      unsuitable to  that work.  It would      be reasonable  to presume  that the      legislature while  enacting  clause      (c) of  Section  6(1)  of  the  Act      could not  have intended Parliament      to be  the sanctioning  authority."      [p. 244] The enlarged definition of public servant in Section 2(c) of the 1988  Act includes persons who are not removable by an y single individual  authority and  can only  be removed  by a collective body and the aforementioned observation of Shetty J. made  in the  context of  parliament would be applicable. Reference, in  this context, may be made to sub-clauses (ix) and (xii)  of Section  2(c). Sub-section  (ix) speaks  of  a person "who  is the  president, secretary  or other  office- bearer  of  a  registered  cooperative  society  engaged  in agriculture, industry, trade or banking, receiving or having received any  financial aid from the Central Government or a State Government  or form  any corporation established by or under a  Central, Provincial  or State Act, or any authority or body  owned or controlled or aided by the Government or a Government  company   as  defined  in  Section  617  of  the Companies Act,  1956 (a  of 1956)". The President, Secretary and other  office bearers  of a  co-operative  society  hold office in  accordance with  the provisions  of the  relevant statute governing  such society  and the  rules and bye-laws made thereunder. The said statute and the rules and bye-laws may provide  for an  elected President,  Secretary and other office bearers  who may  be  removable  by  a  vote  of  no- confidence by  the body  which has  elected them.  Similarly sub-clause (xii)  of Section 2(c) of the 1988 Act talks of a person "who  is  an  office=bearer  or  an  employee  of  an educational,   scientific,   social,   cultural   or   other institution, in  whatever manner  established  receiving  or having received  any financial  assistance from  the Central Government   or any  State Government,  or  local  or  other public authority".  There may  be an  institution run  by  a society through  an elected  Managing Committee.  The office bearer of such an institution would be the elected President or  Secretary   of  the  Managing  Committee  who  would  be removable  only   by  the   body  which   elected  him.  The consideration which  weighed with  this Court  in Veeraswami for holding  that Parliament could not be intended to be the sanctioning authority  under Section 6(1)(c) of the 1947 Act would equally  apply to the general body of members of a co- operative society  under clause  (ix) and  to the  generally body of members of a society running an institution referred to in  clause (xii)  and it can be said that the said bodies could not  have  been  intended  by  Parliament  to  be  the sanctioning authority for the purpose of Section 19(1)(c) of the 1988 Act.      This  would  mean  that  the    definition  of  ‘public servant’ in  Section 2(c)  of the  1988 Act includes persons who are  public servants  under that  provision  though  the criterion of  removability does  not apply to them and there is no  single individual  authority which  is  competent  to grant sanction for their prosecution under Section 19 of the 1988  Act.   In  respect  of  a  Member  of  Parliament  the Constitution does not confer on any particular authority the power to  remove him.  Clause (1)  of Article  103 lays down

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that if any question arises as to whether a member of either House of  Parliament  has  become  subject  to  any  of  the disqualifications mentioned  in clause  (1) of  Article 102, the question  shall be  referred  to  the  decision  of  the President and his decision shall be final. The said function of the  President  is  in  the  nature  of  an  adjudicatory function which  is to be exercised in the event of a dispute giving rise to the question whether  a Member o either House of  Parliament   has  become   subject   to   any   of   the disqualification mentioned  in clause  (1)  of  Article  102 being raised.  If the  President holds  that the  member has become subject  to a  disqualifications mentioned  in clause (1) of  Article 102,  the member  would be  treated to  have ceased to  be member  on the d ate when he became subject to such disqualification.  If it  is not disputed that a member has incurred  a disqualification  mentioned in clause (1) of Article 102, the matter does not go to the President and the member ceases  to be  a member  on the date when he incurred the disqualification.  The  power  conferred  under  Article 103(1) cannot,  therefore, regarded as a power of removal of a Member  of Parliament. Similarly, under the Tenth Schedule to the  Constitution a  power  has  been  conferred  on  the Chairman of  the Rajya/  the Speaker  of the  Lok  Sabha  to decided the  question  as  to  whether  a  Member  of  Rajya Sabha/Lok Sabha  has become  disqualified for being a member on the  ground  of  defection.  The  said  decision  of  the Chairman of the Rajha Sabha and the Speaker of the Lok Sabha that a Member has incurred disqualification on the ground to defection may  result in  such Member ceasing to be a Member but it  would not  mean  that  the  Chairman  of  the  Rajha Sabha/Speaker of the Lok Sabha is the authority competent to remove a  Member of  Rajya Sabha/Lok  Sabha. It  is no doubt true that the House in exercise of its power of contempt can pass a  resolution for  expulsion of  a Member  who is found guilty of  breach of  privilege and acceptance of bribe by a Member in  connection with the business of the House has the power to  remove a  Member who  is found to have indulged in bribery and  corruption. But  in view  of  the  decision  in Veeraswami wherein Shetty J. has said that legislature while enacting clause  (c) of  Section 6 of the 1947 Act could not have intended  Parliament to  be the  sanctioning authority, the House  cannot be  regarded as the authority competent to grant sanction  under Section  19(1)(c) of  the 1988 Act. On that view  of the  matte it  must be  held that  there is no authority who   can  remove a  Member of  Parliament and who would be  competent under clauses (a), (b) or (c) of Section 19(1) of the 1988 Act to grant sanction for his prosecution. This does  not, however,  lead to  the  conclusion  that  he cannot  be  treated  as    ‘public  servant’  under  Section 2(c)(viii) of the 1988 Act if, on a proper interpretation of the said revision he is found to be public servant. Since on an interpretation of the provisions of Section 2(c)(viii) of the 1988  Act we  have held that a Member of Parliament is a public servant,  a Member of Parliament has to be treated as public servant  of the  purpose of  the 1988 Act even though there is  no authority  who  can  grant  sanction  for  this prosecution under Section 19(1) of the 1988 Act.      It is  them urged  that if it is found that there is no authority who  is competent to remove a Member of Parliament and to  grant sanction  for his  prosecution  under  Section 19(1) of the 1988 Act then a Member of Parliament would fall outside   the purview  of the  Act because  in view  of  the provisions  of   Section  19   sanction  is  imperative  for prosecution i  respect of  an offence under the 1988 Act. In support of  this contention  reliance has been placed on the

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following observations  in the  dissenting judgment of Verma J. in Veeraswami :-      "The  grant  of  previous  sanction      under Section  6 being  a condition      precedent for  the prosecution of a      public servant  covered by the Act,      it must  follow that the  holder of      an  office  who  may  be  a  public      servant  according   to  the   wide      definition of the expression in the      Act  but  whose  category  for  the      grant of  sanction for  prosecution      is not  envisaged by  Section 6  of      the Act,  is outside the purview of      the Act, not intended to be covered      by the Act. This is the only manner      in which  a harmonious constitution      of the provisions of the Act can be      made for  the purpose  of achieving      the object  of that enactment." [p.      286]      With due  respect we  find it  difficult to  agree with these observations.  In taking  this view  the learned Judge has construed  Section 6 of the 1947 Act, which like Section 193 and 105 to 197 Cr. P.C. was a limitation on the power of the Court to take cognizance and thereby assume jurisdiction over a  matter, as  a right  conferred on a public servant o mean "no public servant shall be prosecuted without previous sanction". This  aspect has been considered by this Court in S.A. Venkataraman  v. The  State, (1985)  SCR 1037.  In that case the  appellant, who  was a  public  servant,  had  been dismissed after  departmental enquiry  and thereafter he was charged  with  having  committed  the  offence  of  criminal misconduct under  Section 5(1)  of the  1947 Act  and he was convicted. No  sanction under  Section 6 was produced before the trial court. It was contended before this Court that the court could not take cognizance of the offence without there being a  proper sanction  to prosecute.  The said contention was rejected on the view that sanction was not necessary for the prosecution  of the  appellant as  he was  not a  public servant at  the time  of taking  cognizance of  the offence. After referring  to the  provisions contained in Section 190 Cr. P.C.  which confers  a general power on a criminal court to take  cognizance of  offences  and,  after  holding  that Section 6  is in  the nature  of a  limitation on  the  said power, it was observed :-      "In   our  opinion,  if  a  general      power  to  take  cognizance  of  an      offence is  vested in  a court, any      prohibition to the exercise of that      power, by  any  provision  of  law,      must be  confined to  the terms  of      the prohibition.  In enacting a law      prohibiting  t   he  taking   of  a      cognizance  of   an  offence  by  a      court,  unless  certain  conditions      were complied with, the legislature      did  not  purport  to  condone  the      offence. It was primarily concerned      to   see   that   prosecution   for      offences in  cases covered  by  the      prohibition  shall   not   commence      without    complying    with    the      conditions contained  therein, such      as  a   previous  sanction   of   a

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    competent authority  in the case of      a  public  servant,  and  in  other      cases  with   the  consent  of  the      authority or  the party  interested      in the  prosecution or aggrieved by      the offence." [pp. 1043, 1044]      "When the provisions of s. 6 of the      Act are  examined  it  is  manifest      that   two   conditions   must   be      fulfilled  before   its  provisions      become applicable.  One is that the      offences mentioned  therein must be      committed by  a public  servant and      the other  is that  that person  is      employed  in  connection  with  the      affairs of the Union or a State and      is not  removable from   his office      save by or with the sanction of the      Central  Government  or  the  State      Government or  is a  public servant      who is removable from his office by      any    other  competent  authority.      Both  these   conditions  must   be      present to  prevent  a  court  from      taking  cognizance  of  an  offence      mentioned in  the  section  without      the  previous   sanction   of   the      Central  Government  or  the  State      Government   or    the    authority      competent  to   remove  the  public      servant from  his office. If either      of these conditions is lacking, the      essential   requirements   of   the      section  are   wanting  and   t  he      provisions of  the section  do  not      stand in  the way of a court taking      cognizance     without     previous      sanction." [p. 1045] This means  that when  there is  an authority  competent  to remove a  public servant  and  to  grant  sanction  for  his prosecution under  Section  19(1)  of  the  1988    Act  the requirement  of   sanction  preludes  a  court  form  taking cognizance  of  the  offences  mentioned  in  Section  19(1) against him in the absence of such sanction, but if there is no authority  competent to  remove a  public servant  and to grant sanction for his prosecution under Section 19(1) there is  no  limitation  on  the  power  of  the  court  to  take cognizance under  Section  190  Cr.  P.C.  of  the  offences mentioned in  Section 19(1) of the 1988 Act. The requirement of sanction  under Section  19(1) is intended as a safeguard against criminal  prosecution of  a public  servant  on  the basis of  malicious or  frivolous allegations  by interested persons. The  object underlying  the said requirement is not to condone the commission of an offence by a public servant. The inapplicability  of the provisions of Section 19(1) to a public servant  would only  mean that the intended safeguard was not  intended to be made available to him. The rigour of the prohibition  contained in sub-section (1) is now reduced by sub-section (#) of Section 19 because under clause (a) of sub-section (3)  it is provided that no finding, sentence or order passed by a special Judge shall be reversed or altered by   a   ******** confirmation  or revision on the ground to absence  of,   *************  This   would  show   that  the rquirement of  sanction under  sub-section (1) of Section 19 is a matter relating to the procedure and the absence of the

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sanction does  not go to the root of the jurisdiction of the court. It must, therefore, be held that merely because there is no  authority which  is  competent  to  remove  a  public servant and  to grant  sanction for  his  prosecution  under Section 19(1)  it cannot  be said  that Member of Parliament ins outside the Purview of the 1988 Act.      In the  absence of requirement of previous sanction for initiating proceedings in a court of law against a Member of Parliament in  respect of  an offence  mentioned in  Section 19(1) of  the 1988  Act t  he possibility  of  a  Member  of Parliament being  subjected to  criminal prosecution  on the basis  of   malicious  or   frivolous  allegations  made  by interested persons  cannot be  excluded. It  is  hoped  that Parliament will  provide for  an adequate  safeguard in that regard by  making suitable  amendment in  the 1988  Act. But till such  safeguard is  provided, it appears appropriate to us  that   protection  from   being  subjected  to  criminal prosecution  on   the  basis   of  malicious   or  frivolous allegations should  be available to Members  of Parliament.      In  Veeraswami   this  Court,   while  considering  the question regarding  the applicability  of the  provisions of the 1947  Act to  Judges of  Superior Courts,  has held that Judge of Superior Courts fall within the purview of the said Act and  that the  President is  the authority  competent to grant sanction  for their  prosecution. But  keeping in view the need  for preserving  the independence  of the judiciary and the   fact  that the  Chief Justice  of India, being the head of  the judiciary,  is  primarily  concerned  with  the integrity and  impartiality of  the judiciary, the Court has directed that the Chief Justice of India should be consulted at the stage of examining the question of g ranting sanction for prosecution.  In relation  to Member of Rajya Sabha/ Lok Sabha the  Chairman of  the Rajya  Sabha/ Speaker of the Lok Sabha holds a position which is not very different from that held by the Chief Justice of India in relation to members of the superior judiciary. In the United Kingdom the Speaker of the House  of Commons  is regarded  as the representative of the House  itself in its powers, proceedings and dignity and is treated  as a  symbol of  the powers  and priviges of the House. [See  : May’s  Parliamentary Practice   21st Edn., pp 170. 190].  The ****  position in  India. In  the  words  of Pandit Jawahar  Lal  Nahru  :  "The  Speaker  representative House. He  represents the  dignity of the House, the freedom of the  House.." [See  : HQP Ocbrts Vol. IX (1954). CC 3447- 48]. In  Kihoto Hollophen v. Zachillhu & Ors. 1992 Supp. (2) SCC 651,  this Court has said : "The Speakers/ Chairman hold a pivotal  position in the scheme of Parliamentary democracy and are  guardians of  the  rights  and  privileges  of  the House." The  Chairman of  the Rajya Sabha/Speaker of the Lok Sabha by  virtue of  the position held by them are entrusted with the  task of  preserving the independence of the Member of the House. In order that Members of Parliament may not be subjected to  criminal prosecution on the basis of frivolous or malicious allegations at the hands of interested persons, the prosecuting  agency, before  filing  a  charge-sheet  in respect of an offence punishable under Section 7, 10, 11, 13 and 15  of the  1988 Act against a Member of Parliament in a criminal court,  shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be.      On the  basis of  the aforsaid  discussion we arrive at the following cunclusion :- 1.   A Member  of Parliament  does not  enjoy immunity under      Article  105(1)   or  under   Article  105(3)   of  the      Constitution from  being prosecuted  before a  criminal

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    court for  an offence  involving offer or acceptance of      bribe for the purpose of speaking or by giving his vote      in Parliament or in any committees thereof. 2.   A member  of Parliament  is a  public  servant    under      Section 2  (c) of  the Prevention  of  Corruption  Act,      1988. 3.   Since there  is no  authority  competent  to  remove  a      Member of  Parliament and  to grant  sanction  for  his      prosecution under  Section 19(1)  of the  Prevention of      Corruption Act,  1988, the court can take cognizance of      the offences  mentioned in Section 19(1) in the absence      of sanction but till provision is made by Parliament in      that regard  by suitable  amendment  in  the  law,  the      prosecuting agency,   before  filing a  charge-sheet in      respect of  an offence  punishable under Section 7, 10,      11, 13,  and 15  of the  1988 Act  against a  Member of      Parliament  in  a  criminal  court,  shall  obtain  the      permission of  the Chairman  of the Rajya Sabha/Speaker      of the Lok Sabha, as the case may be.